McNamee Mediations

Prenuptial agreements are governed by statue (Uniform Premarital Agreement Act, Family Code §1610 et seq.)

A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into by two people prior to marriage or civil union. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of marriage.

Strong marriages are built on an equal partnership and the first step in that direction is taken before you ever walk down the aisle. While preparing for marriage, you need to discuss how each of you feels about important things like religion, parenting, taking care of aged relatives, where you will live, who will earn the money, how it will be spent, and if one of you will be a full-time parent. Talking about such important matters now will help you understand each other better and encourage open communication from the start. What better time to chart the future of your marital partnership than when your love is strong? Suze Orman, author of The Courage to Be Rich, states: "It's not a sign of greed, weakness or fear to want the reassurance that you both will be safe, whatever happens, and, in my experience, opening up these issues can bring partners closer together in ways they rarely comprehend until they do it."

Premarital mediation:
Premarital mediation is an alternative way of creating a prenuptial agreement. In this process, a mediator facilitates an open discussion between the couple about all kinds of marital issues, like expectations about working after children are born and saving and spending styles as well as the traditional premarital discussions about property division and spousal support if the marriage is terminated. The engaged couple makes all of the decisions about what would happen in the event of a separation or divorce with the assistance of the mediator. They then draft either a deal memo or a premarital agreement and have it reviewed by their respective attorneys. An agreement developed via mediation is typically less expensive because fewer hours are spent with attorneys because the couple has made all of the decisions together, rather than one side vs. the other.

These are often designed where one intending seeks to protect his or her wealth in the event of the marriage ending in divorce. The contract tries to achieve a measure of certainty about what the financial "damage" would be if the marriage came to an end. However K v K (2003) has heightened the importance of pre-nuptial agreements by deciding that the wife had to stick by the terms of a pre-nuptial agreement she signed. The courts still keep their discretion about whether or not a pre-nuptial agreement will be upheld but this new case shows that the courts are in favour of couples making private agreements between themselves. **California requires that the parties be represented by counsel if spousal support (alimony) is limited.

Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They are not the final word. Nevertheless, they can be very powerful and limit parties property rights and alimony. It may be impossible to set aside a properly drafted and executed pre-nup. A pre-nup can dictate not only what happens if the parties divorce, but when they die. They can act as a contract to make a will and/or eliminate all your rights to property, probate homestead, probate allowance, right to take as a predetermined heir, and the right to act as an executor and administrator of your spouses' estate.

Prenuptial agreements must be made before marriage otherwise they have no effect if they are drawn up after marriage. Under the Statute of Frauds, a prenuptial agreement is only valid if it is completed prior to marriage. If two people got married and signed a prenuptial agreement, then it would be considered a void agreement, which may not be enforced in court. After a couple is married, they may draw up a post-nuptial agreement.

**Prenuptial agreements in all U.S. states are not allowed to regulate issues relating to the children of the marriage, in particular, custody and access issues. The reason behind this is that matters involving children must be decided in the children's best interests. However, this is controversial: some people believe that as custody battles are the worst part of a divorce, couples should be able to settle this in advance.

In California, an agreement is very powerful. A couple can waive their rights to share property (community property). It can limit spousal support (although a court at the divorce can set this aside if it deems that the limitation is unconscionable). The agreement can act as a contract to make a will requiring one spouse to provide for the other at death. It can also limit probate rights at death, such as the right to a probate allowance, a probate allowance, the right to act an executor, the right to take as a predetermined heir, and so forth. 

**In California, Registered Domestic Partners may also enter into a prenup. Prenups for Domestic Partners can have added complexities because the Domestic Partner does not have the benefit of federal tax law that favors married couples.