.png)
It's essentially impossible to have a valid prenuptial agreement without each party having his or her own attorney. It's not that you can't create and sign one on your own before marriage. It's that it won't hold up in court later if you didn't have an attorney when you created it.
The Rules for Creating Prenuptial Agreements
The California Family Code lays out the laws for prenup agreements. The rules are mostly concerned with creating a fair process in order to ensure you understand the consequences of the document you are signing and that you weren't pressured or forced to sign.
The fairness is not really related to who comes out better or worse in the deal. Once a relatively fair process is established, individuals are free to make whatever decisions they want and they're free to agree or disagree with their future spouse's terms.
An attorney has the legal knowledge to explain the terms and consequences of a prenup to help someone better understand the decisions they are making. And having an attorney can ensure the process isn't rushed or unfair.
What if We Hire One Attorney for Both of Us?
An attorney can't represent parties that have different interests on the same matter. And even though you are about to get married, you have different interests when it comes to marriage financial issues.
You are determining how you are going to share your future income and how it will be split in case of a divorce. How can one attorney look out for both interests? Advice they give to help one may hurt the other. It's a no-win situation for the attorney and can't be done.
Even if it's theoretically possible to waive this conflict, it doesn't work in practice. If anything ever goes wrong, one spouse will look back at what that attorney did and think the attorney favored the other.
What if Just One of Us Hires an Attorney?
According to the rules in the Family Code, it is possible for only one of you to hire an attorney. That attorney will advise whoever hired them. The other partner is on their own... sort of.
The Family Code rules require this attorney to make sure the non-represented partner is fully informed as to the terms and basic effects of the agreement. But the attorney doesn't represent this person, so how can they properly assist the other person without violating the rights of their own client?
Since there really isn't any good solution to this, it's unlikely any attorney will agree to represent someone on a prenup if there isn't an attorney on the other side.
The one-attorney option will absolutely not work if you have a provision in your prenup agreement that limits or eliminates spousal support. If you get divorced and try to use that provision, all the unrepresented spouse has to do is say is, "I didn't have an attorney," and the court will rule that part of the agreement invalid.
The Prenup Agreement Is No Good if It Doesn't "Work" Later
The main way a prenup agreement works is that its terms are enforced when a specific event like a divorce happens. And the main way people try to get out of following the terms of their prenup is by looking back to its creation and saying, "I didn't fully understand what I was agreeing to. It wasn't fair. Therefore, I shouldn't have to do what I said I would do."
The reason you each have an attorney when creating the agreement is precisely because this process is going to be reviewed in detail for mistakes. Having an attorney to explain and negotiate the prenuptial agreement takes away a large part of that argument.
Kommentare