Question: I got divorced a few years ago. I have been in a relationship now for almost a year, and my girlfriend recently accepted my marriage proposal. My prior divorce was drawn out with so many arguments and it was so expensive that I really want to avoid that mess, if at all possible.
Although I am confident that this marriage will be better in so many ways and go the distance, I want to be realistic. So I am considering a prenup. I have talked with my fiancée about it generally, and she seems fine with it.
She is also divorced, but her divorce wasn’t nearly as bad as mine. But we haven’t discussed the details of any prenup or how we would go about getting one. She seems to be most concerned with what will happen if I die before she does.
How should I approach the issue with her, and what should I expect ahead of the wedding date?
Answer: The most important part of any “prenup” or “premarital agreement” is whether a court will enforce it if and when the time comes. For that to happen, you have to strictly follow the law. California has a number of laws regarding the substance of a premarital agreement and the procedures used to enter one.
Although California is a community property state, which means that property acquired by a spouse during marriage is community property, parties to a premarital agreement can change the effect of our state’s community property law. So while California’s community property laws are the “default” setting for all married couples, parties are free to provide their own set of rules.
Parties can define the character of property acquired during marriage as separate, and they also can determine what a party receives in the event of divorce. In particular, parties can limit or waive spousal support (i.e., alimony), so long as that provision is not unconscionable when enforced. So if one party has to turn to government assistance while the other lives in a mansion, the court may throw out the spousal support provision. But something being unconscionable is much different than being unfair.
You also can distinguish particular assets as separate or community. For example, you can make joint contributions to your home and agree that the home will be treated as a community asset while your earnings and retirement savings remain separate property. So the premarital agreement has flexibility and need not be one or the other, all community or all separate.
There are limits on what parties can include in a premarital agreement. Generally speaking, the law forbids any provisions that would be against public policy. For example, you cannot cut out child support or make custody arrangements. You cannot include punitive provisions if one spouse changes his or her religion or picks up drinking.
California law also puts some strict procedural requirements on executing a premarital agreement. The law requires that a party have independent legal counsel or a separately signed waiver of that requirement. In addition, the premarital agreement must first be presented to the other party at least seven days before signing. There will be no springing the documents at the last instant or excuses of “I never even read it.”
The two of you also will need to make full disclosure of all your property and financial obligations to each other.
If your wife-to-be is concerned about what happens after you die, the law allows you to address the disposition of property at death. But it is probably better that you deal with those issues in a properly drafted will or revocable trust. When the provisions of a premarital agreement conflicts with the provisions of a will, your children may end up in court with your spouse.
Regarding how you approach the agreement and negotiate its terms with your fiancée, you should know that the premarital agreement is not like any standard business contract. It needs to be an agreement that both of you respect and truly believe is fair. You don’t want to score a victory in your negotiations over the premarital agreement only to have that create issues in your marriage from the start. Listen to your fiancée’s concerns, and see if those can be addressed at the same time as yours.
The premarital agreement will take time, so you and your fiancée should both see attorneys as soon as you can. Negotiations should not be taking place at the same time that you are picking out centerpieces for tables at the reception. Get it done early, get it done fair, and get it done right.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
Disclaimer – The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Any information, testimonials, or reviews on this website are not provided as a prediction, guarantee, or warranty of any particular result in your legal matter. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.