Nowadays, you can buy insurance for pretty much everything. It is typical for the average person to have insurance policies for their cars, houses, apartments, and for their health. Of course, no one plans on getting into a car accident or getting ill or having their house burglarized but some things are simply out of our control. And when things do spiral out of control, insuring yourself allows you to protect yourself from the worst possible outcomes.
Did you know that you can insure your marriage against divorce? And the best part is that you can protect yourself from a nasty divorce without having to pay any monthly insurance premiums. And the best way to do this is to get a prenup. Divorcing without a prenup could lead to disastrous financial and legal consequences for one or both married persons.
Prenup, of course, is short for prenuptial agreement. A prenuptial agreement is a written contract created by two persons before they are married that lists all of their assets and debts and specifies how each person's assets and debts will be divided if the marriage ends. A prenup is basically marriage insurance. There are both pros and cons to getting a pre-nuptial agreement. I outline them below.
It prevents a nasty divorce.
By avoiding extended court proceedings, you reduce your legal and attorney fees. It is common for divorce trials to cost anywhere between $10,000 and $50,000 in attorney's fees and legal fees.
It allows you to define what is separate property (personal) and what is community property. California law mandates that - in the absence of a prenuptial agreement - all assets, properties, income, and debt acquired by any married person during marriage are community property that is to be divided 50/50 between the married couple. For a more complete discussion of California's community property and separate property laws, please click here.
It allows you to assign debt to the appropriate spouse and avoid sharing debt after a divorce.
It allows you do decide in advance how much spousal support the lower-earning spouse should receive from the higher-earning spouse and for how long he/she will receive that support. Both persons can even use a prenup to waive spousal support altogether.
It gives you the peace of mind of knowing that your livelihood will be protected if a divorce does occur.
A prenup cannot cover child custody and child support issues. No contract can void both parents’ statutory duties to provide for the health, welfare, and education of their children.
A family law court will reserve jurisdiction to invalidate any provisions it finds to be unfair or unjust.
These are the questions you and your significant other should be asking yourselves when deciding whether or not to get a prenup. If your answer to one or more of these questions is yes, you should seriously consider getting a prenup
Did you acquire real estate before your marriage?
Do you intend on selling your pre-marital house during the marriage?
In the event of a divorce, are you uncomfortable with your spouse being legally entitled to half of the income you earned during marriage?
If you don't currently own real estate, do you intend on purchasing real estate during marriage?
Do you intend on purchasing real estate during marriage that you want to be your sole and separate property?
Are you a business owner?
Aside from real estate ownership, do you have other significant assets?
Is your income more than $80,000.00 a year?
How much retirement benefits have you accrued?
If you are the high earner in the relationship, are you uncomfortable with a divorce judge ordering you to pay an exorbitant amount of spousal support/alimony to your spouse in the event of a divorce?
Most importantly, are both you and your soon-to-be-spouse comfortable with your decision of marrying without first executing a prenup?
Talking with your Significant Other
Talking with your significant other about executing a prenuptial agreement should be done thoughtfully and at the right time. If approached with openness and honesty, negotiating and drafting a prenuptial agreement may even strengthen your upcoming marriage since it will provide both spouses with the peace of mind that a divorce will not harm their livelihoods.
Should I Hire an Attorney?
Both parties should consider consulting with his/her own independent attorney before executing a prenuptial agreement. Of course, only the Parties themselves can articulate their wants and needs regarding post-divorce property and debt division. But hiring an attorney will ensure that the agreement is actually enforceable, your rights are protected, and that you haven’t failed to address crucial issues.
If you'd like to set up a free consultation to discuss how we can draft or review a prenuptial agreement for you, do not hesitate to call us (888) 666-0794. You can also email us or schedule a free initial consultation on our home page.
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