You Need To Think Carefully About Entering Into A Premarital Agreement

Getting married is likely the most important financial decision you'll ever make. Although the last thing a couple expects to face on their wedding day is a future divorce, as we all know, divorce is very common in California. A Premarital Agreement (also known familiarly as a "prenup") is a document that lays out explicitly the mutual agreement of the parties prior to their marriage about issues they are likely to face upon divorce. Typical issues may include:

  • Am I going to be forced to pay spousal support (alimony) to my spouse?
    • How much will I be ordered to pay?
    • Do I have to pay spousal support for the rest of my life?
    • Can I avoid paying any spousal support no matter how long we're married and regardless of how much I make?
  • What is going to happen to the property I owned before marriage?
  • How will the assets we acquire during our marriage be divided?
  • If my spouse tries to throw out our premarital agreement, do I have to pay for his or her lawyer's fees? Can I make my spouse pay for my attorney's fees?

Why Do I Need A Lawyer To Draft A Premarital Agreement?

For the unwary party, a premarital agreement can be filled with traps. If you don't get proper legal advice during the drafting of the agreement, you might be unpleasantly surprised later to discover that your premarital agreement is either unenforceable or is enforceable, but contrary to your intent. Common pitfalls include:

  • The parties failed to make a full disclosure of their property or financial obligations (or they failed to include an appropriate waiver clause).
  • The agreement is poorly drafted and contains ambiguous clauses that are subject to multiple interpretations.
  • A party signed without independent legal representation.
  • The parties failed to include a severability clause.

If you have questions about whether a premarital agreement is right for you, or if you are now looking at enforcing or contesting a prenup, contact Michael P. McDeavitt, Certified Family Law Specialist, with over 20 years of experience, for a consultation at our Pleasanton office. We also represent clients located in Dublin, Livermore, San Ramon, the Tri-Valley and throughout East Bay.