You can do virtually anything yourself-like paint your house, fix your car or even perform your own surgery. Similarly, it’s always possible to put together your own prenup. I mean, it’s not rocket science. But if you want to create a premarital agreement–one that will actually be enforced by a judge–that is a different question. Do you need a lawyer for a prenup?
For the most part, prenups are just like any other contract. That contract has various requirements that must be met before it will be enforced. For example, you must have mutual promises and consideration to enforce any agreement.
California has certain specific requirements for valid prenups that are based upon the laws created by the state legislature and years of case law generated by the courts of the state.
In most cases, you will need an attorney who specializes in prenups to help guide you in determining what is and isn’t permissible for a premarital agreement. Your attorney will help you understand the variety of issues in your specific situation and provide advice to navigate those issues.
More and more people are seeking the advice of an experienced lawyer to help them create a prenup. At the same time, most people who are about to get married with significant assets generate a prenup to help them protect what they’ve earned. If you’re in that category, invest in the services of an experienced Orange County prenup attorney.
What is a prenup?
A prenup may also be called a prenuptial agreement or premarital agreement. In brief, it is an agreement you enter into with your fiancé before you are married. Should you get divorced, your prenup will be the law that governs your case.
That is, you and your spouse can decide what the law should be for your divorce, instead of allowing the politicians in Sacramento to determine what the rules in your divorce should be.
Prenups can cover a broad range of financial issues, but generally, govern how your marital assets and debts will be split up if you are to divorce.
You can decide how the assets you each bring to your marriage will be divided. Usually, couples want their assets to stay with the person who brought them into the marriage.
You can also decide what happens to the assets you accumulate during your marriage. So, you can determine now what will happen to your family home when you divorce. If that home has been in your family for many years, you may want to protect that house in the future.
Your debts can also be covered in a prenup. You can decide if you want each of you to keep the debt you have accumulated on your credit cards or the student loan you took out while you were in school. Or you can choose to split all of the debts equally. Again, it’s entirely up to you.
One area is off limits for your prenup. Indeed, your prenup cannot decide any issue relating to your children. You can’t cover either child custody or child support in your prenup. Under California law, the court must resolve those issues based upon what’s in the best interest of your children.
Why have a prenup?
In California, unless you have a prenup, when you marry you will automatically receive certain property rights from your spouse. You will automatically share in the ownership of any property you and your spouse buy together during your marriage.
In other words, you will share in the ownership of your house you buy during the marriage. When you divorce, you must look to California law to determine who gets how much of the proceeds from the sale of the house.
But if you would like to divide the property in a different way than what California law says, then you must get a prenup.
There are many other reasons for getting a prenup:
- Decide property rights in the event of divorce. You can decide before you marry how you would like your assets to be divided up should you divorce.
- Keep money earned during marriage separate. When you marry, all earnings are community property. You can decide to keep all of your income separate.
- Keep assets brought into the marriage separate. Many people who get married have some property and would like to sure that they will keep it in the event of a divorce. A prenup can make that happen.
- Children of a previous marriage can still inherit property. A premarital agreement can sure that a parent’s children from another relationship will still inherit property from them when they die.
- Making financial decisions during the marriage. You can use your prenup to decide how you will manage your funds when you are married. For example, many couples will open a joint account, and each separately contributes funds for household expenses.
Why do I need a lawyer for a prenup?
The primary reason you need a lawyer for creating your prenup is that having a lawyer involved gives you the best chance of enforcing it should you divorce.
The fact remains, if you want to enforce your prenup, you must have legal counsel involved.
In many divorce cases, the disadvantaged spouse is going to try to get the prenup thrown out and not enforced by the court. The primary attack to the enforcement of a prenup is to argue to a court that the agreement was not entered into voluntarily.
To be entered into voluntarily means that you were not subject to duress, coercion or undue influence when you signed the prenup. If someone is trying to get a prenup thrown out because they don’t get all that they want, they will try to prove that it wasn’t signed voluntarily. Should they be able to show that, the prenup will be treated as void.
The best way to get it enforced is to have each party hire their own independent attorney. Not having an independent attorney may result in the court finding that the agreement was not voluntarily signed.
The section of the Family Code that deals with enforcing a prenup is Section 1615. It says:
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves…:
(1) That party did not execute the agreement voluntarily.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
If you plan to either attack the validity of a prenup or try to have it enforced, you will need to understand the provisions of Section 1615 thoroughly.
When reading the section, take note of how many times the phrase “legal counsel” is mentioned. The law makes clear that being voluntary is all about having an independent legal counsel involved in the creation of the prenup.
Therefore, after reading Section 1615, it should be clear that if you want your prenup to be enforced, you must always have lawyers involved in the drafting and negotiation of the prenup. Also, both parties must be advised about the legal effects of the agreement and the implications for their potential future divorce.
If you want to create an enforceable prenup, there is simply no reason to skip out on having independent legal counsel involved.
There are other reasons for having an attorney involved including:
- Your premarital agreement can be worth a lot of money later on when you try to have it enforced. If you don’t have a lawyer involved, the risk is high that your agreement won’t be enforced. The money you should have spent hiring an attorney will look like money well spent.
- May times without lawyers, your fiancé will try to give you “free” legal advice, or you may have to rely on a friend for help. Even though they may have good intentions, it is unlikely that they know the details of the laws on premarital agreements. Anything they draft or advise you on may not be correct.
- Getting legal advice from your fiancé could mean that they may be giving you information that is not in your best interests and is just wrong.
Do you need two lawyers?
Yes. It’s best for your long-term prospects as a couple and to enforce the prenup for each of you to have independent legal counsel for the preparation of the agreement.
Having separate lawyers can make sure that you both feel comfortable about the provisions in the premarital agreement. By fully understanding the prenup, you can take comfort that neither of you is being taken advantage of by the other or their attorney.
Typically, when my firm is asked to represent someone to draft a prenup, we will make it a requirement that independent legal counsel represents the other side. If the other side doesn’t have enough money to hire a lawyer, we will require our client help pay for their fiancé to hire their own lawyer.
My client cannot be involved in the hiring or selection of their fiancé’s attorney. It’s best if they give them the money to do everything on their own. By providing the funds to hire an attorney, you are averting a potentially disastrous situation later.
Prenups are scrutinized very carefully by all divorce courts. Both parties must have independent legal counsel to have it enforced. On the other hand, each party not having their own lawyer can be a red flag for the judge–your prenup should not be enforced.
Will a waiver of spousal support be enforced?
Not unless the party limiting or waiving support is represented by their own attorney. Unless independent legal counsel represents your fiancé, a provision waiving or even limiting spousal support will not be enforced.
Family Code Section 1612 (c) states:
(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.
As you can see, in California, any time you seek to do anything with spousal support, your fiancé must be represented by independent legal counsel.
Can I use online forms to draft my prenup?
Some couples who are about to marry, try to use “do it yourself” prenuptial agreements they find online. Years later, when trying to hold their spouse to the terms of their prenup, they will wish that they had gone to a lawyer.
Every state has specific provisions that must be included in a prenup to be valid. Online forms are not drafted with those state-specific provisions in mind. They are general forms that don’t take into account the differences between each state.
For example, some terms cannot be included in a prenup, and these terms vary by state. Forms you find online won’t make that distinction and could cause your entire prenup to be invalid.
As you’ve seen, some sites require that a lawyer is involved. And California requires each party to have their own attorney to make sure that you enter into a voluntary transaction.
Also, most judges in California will look less favorably on a prenup drafted using online forms.
How much does a prenup cost?
How much does it cost to have an attorney draft a prenup? The amount can vary based on several factors:
- Your total assets;
- The complexity of how you own your assets;
- What you would like to do with your assets;
- Whether you would want to limit or eliminate spousal support;
- The complexity of your asset distortion or spousal support payout;
- How much has been previously agreed upon by you and your spouse; and
- Your location.
All in all, the more complicated your prenup is going to be, the more time and attention it will take your attorney to work on the prenup. The more time it takes an attorney to work on the prenup, the more it will cost for you.
In our many years of practice, we have seen prenups range from $2500 to over $50,000. But for most uncomplicated prenups, you should expect to pay in a range from $5,000 to $10,000 in Orange County, California for a solid premarital agreement.
Set a consultation with an Orange County, California attorney who specializes in prenups for more specifics.