There can be a stigma around the idea of a prenuptial or premarital agreement. People often think it is a roadmap to divorce. Instead, it acts as a roadmap to how the couple will handle their finances during the marriage, and what will happen in the event they do get a divorce.
Pros of Having a Prenuptial Agreement
Think of a prenuptial agreement like life insurance. You hope you never need it, but glad you have it if you do. It is difficult to talk about money, but one positive is that the prenuptial agreement is put in place at a time when the couple feels loving toward each other. Consider it an agreement in contemplation of marriage, not in contemplation of divorce.
It gives you the opportunity to have a serious discussion about what your financial life will be like during your marriage. If you have children from a previous marriage or relationship, this is your chance to allocate their needs in your finances, in the event this marriage does not work out.
A couple may use Mediation or the Collaborative process to negotiate their premarital agreement. This is a non-adversarial, interest-based opportunity for the couple to build a prenup that they will both feel good about.
Cons of Having a Prenuptial Agreement
There are times when one party wants a prenuptial and the other party feels forced into signing it or calling off the marriage. That may be a good thing and an indicator that it would not have been a good marriage. Perhaps not a con, but a silver lining.
What Needs to Be Included for a Prenuptial Agreement to be Valid.
In 1986, California adopted the Uniform Premarital and Marital Agreements Act. This lays out the requirements that must be met for such agreements to be valid and enforceable.
- The Agreement must be in writing.
- Consent must be voluntary.
- It must include a statement that both parties had access to legal counsel.
- Financial disclosure by both parties must be complete. If assets are hidden and later discovered, the Agreement will be invalid.
- The Agreement may include how spousal support will be determined but a court may invalidate this clause if the court finds the agreement unconscionable.
- A clause waiving child support by either party is invalid, as is any clause limiting any remedy for domestic violence.