A prenuptial agreement (lawyers like to call them “antenuptial agreements”) is an agreement between a couple who plans to marry. It operates in the event of an eventual divorce to distribute the couple’s assets in a manner that is inconsistent with the distribution that would occur under California’ community property law. They generally work to the advantage of the richer of the two spouses.
Since the validity of prenuptial agreements is specifically regulated by California statutory law in a manner that most contractual relationships are not, they must be drafted with great care to avoid a nasty surprise years or even decades down the road. The following are some of the most common errors committed by aspiring spouses when creating prenuptial agreements.
Failing to Put the Agreement into Writing
A kiss does not establish the validity of a prenuptial agreement – at least not in the eyes of the law. Although some types of verbal contracts can be enforced (if their terms can be proven, which can be difficult when the terms are not reduced to writing), in California, a prenuptial agreement must be in writing and signed by both parties in order to be enforceable.
Failing to Arrange for Independent Representation for Each Spouse
Each spouse should be represented by their own lawyer; otherwise, you are asking for trouble down the road. Although independent representation is not an absolute requirement that applies under every circumstance, in many cases, it can provide the party seeking to undermine the agreement with a loophole that can be easily exploited.
Your spouse’s signature on the agreement must not be coerced in any way. Obviously, securing a signature at gunpoint is coercion, but what about waiting until the last minute to seek your spouse’s signature? After all, if he or she doesn’t sign, you’ll have to cancel the wedding at the last minute. That, too, can be considered a form of coercion. Without more, however, making the signing of a prenuptial agreement a condition of agreeing to marry does not constitute coercion.
Failing to Disclose Your Assets and Liabilities
Failing to disclose the full extent of your assets and liabilities is one of the best ways to ensure that your prenuptial agreement will be invalidated. Insist on full disclosure in writing and attach it to the agreement.
The best way to draft a prenuptial agreement is to imagine that there is a little gremlin sitting on your shoulder who is constantly trying to twist your words around to make them mean something that you didn’t intend. Draft the agreement in a manner that silences your gremlin. The end product should be a well-drafted prenuptial agreement that will minimize your chances of conflict and maximize your chances of victory if conflict does erupt.
Contact Us Today
At CKB Vienna LLP, we can help you draft a prenuptial agreement that will maximize your chances of fulfilling your original intentions in the unfortunate event that such a document is needed to protect your interests. If it is already too late for that, we can help you protect your interests at the negotiating table or, if necessary, in court.