In addition to doing divorces, we also help couples get married–through the negotiation and drafting of prenuptial or premarital agreements. Prenuptial agreements are contracts between two parties that pre-divide property in the event the parties divorce. Things you can do with a “prenup” include:
Waiving or limiting Spousal Support (alimony);
Waiving interest in real property;
Waiving interest in a pension;
Waiving interest in a debt.
(Note: Premarital agreements cannot regulate child custody or child support.)
Typically, prenups are sought by people with significant assets to protect. They are often divorcees who have been through a painful learning experience. Sometimes, they are sought by parties who want to avoid being liable for the other party’s debt. Premarital agreements can be tailored very specifically to the needs of the parties, though a good attorney can ensure there are no loopholes.
(Note: Both parties must be represented if the premarital agreement includes spousal support provisions.)
But did you know that the easiest, most-complete prenuptial agreement doesn’t even require an attorney to draft?
There are three ways to end a marriage in California: Dissolution, Annullment and Legal Separation. Dissolution and Legal Separation are identical in terms of determining custody, support and property division; basically, everything but status. People generally choose Legal Separation over Divorce either for religious reasons (their faith forbidding divorce, for instance) or insurance reasons (divorce means a party can’t enroll the other party on his/her policy). Legal Separations can also be entered immediately after the filing of a Petition, whereas dissolution judgments cannot be entered until six months and a day have passed. Legal Separations also have less stringent residence requirements, so a Legal Separation petition can be filed pending the parties qualifying for the filing of a Dissolution petition.
Legal Separations can also be used as comprehensive prenups. Here’s how:
The parties can Legally Separate the day they are married. Since community interest in debts and earnings only accrues between the date of marriage and the date of separation, such community interest is zero. The marriage is still intact; only a dissolution can terminate status. The marriage can still be based on mutual love and trust and cooperation, but creditors can’t collect from the other party, separate assets are preserved in the event of divorce, and the length of the marriage for the purpose of calculating spousal support is zero.
Of course, this solution does not sit well with all people. Every situation is unique; however, it is always good to be familiar with all the tools in your box so you can make the best-informed decision.
Disclaimer: The information provided in this blog is for general informational purposes should not be relied upon as legal advice. An attorney-client relationship is not formed by reading the information on this site and can only be formed by a written agreement that sets forth the scope of the relationship and the fee arrangement. There is no substitute for expert legal assistance. If you need representation, schedule a consultation with the Barefoot team.