divorce mediation
divorce mediation
divorce mediation
 

California Prenuptial Agreements ("Premarital Agreements")

Prenuptial agreements are growing in popularity in California, and for good reason. While no one wishes to contemplate the sad possibility of divorce when entering into marriage, partners who carefully outline their respective financial responsibilities prior to formalizing their union enjoy several important benefits:

(1)

The full disclosure of each partner's assets and debts, as required in California prenuptial agreements, fosters open discussion about the couple's financial health.

(2)

Voicing expectations regarding financial security and support helps couples address concerns at the best possible time – before marriage.

(3)

In the unfortunate event of a divorce, a well-drafted and properly executed prenuptial agreement will strip away much of the uncertainty that plagues California divorces, making an incredibly stressful event more manageable and offering protection from a potentially disastrous judgment.

Frequently Asked Questions


Contact me at (650) 714-9439 or by email to schedule a free consultation*

345 Lorton Ave., Suite 201, Burlingame, CA 94010 (Directions & Parking)

 

Working with individuals who wish to take the responsible step of determining financial rights and responsibilities prior to marriage is always a pleasure.

If I can assist you by drafting or reviewing a prenuptial agreement on your behalf, please don't hesitate to contact me.

divorce mediation

   
  • BA, Stanford University
  • JD, Georgetown University, with honors
  • Avvo-rated "Superb" (highest rating)
  • Author of Divorce for Grownups
  • Certified Mediator
  • Former attorney with American Lawyer-rated “A-list” (top 20 nationwide) law firm of Gibson, Dunn & Crutcher, LP
  • Experienced in executive compensation, estate planning, and business transactions
  • Director Emeritus, Home & Hope, a homeless shelter in San Mateo County
 

Frequently Asked Questions


What are the timing requirements with respect to drafting and executing prenuptial agreements?

By California statute, at least seven days must elapse between the time that the parties are “first presented” with the agreement and advised to seek independent counsel and the time the agreement is signed. In other words, if you decide to consult an attorney about drafting a prenuptial agreement five days before your wedding, you are too late. A conservative interpretation of the statute requires that once you have negotiated a final draft of the agreement (as opposed to simply delivering a rough draft of the agreement to your spouse), you must wait a further seven days before signing the agreement.

What is required to make a California prenuptial agreement enforceable?

For a California prenuptial agreement to be enforceable, several requirements must be met:

  1. Independent counsel: If the prenuptial agreement contains a waiver of spousal support, the party waiving support must be represented by his or her own attorney. If the prenuptial agreement does not contain a waiver of spousal support, the non-represented party must sign a separate written acknowledgment that he or she has been advised to retain an attorney but declined to do so. Simply incorporating this acknowledgment into the prenuptial agreement is not enough. Regardless of the scope of the prenuptial agreement, obtaining an attorney for each partner is always the best approach. Any cost savings associated by using only one attorney during the process is eroded by the fact that the drafting attorney is then forced to write a lengthy opinion letter explaining the terms of the agreement and all of the rights the non-represented party will be relinquishing under California law.
  2. Waiting period: As noted above, at least seven days must have elapsed between presentment of the agreement and signature by both parties.
  3. Full disclosure: Full disclosure of each party's assets and debts is a critically important part of the process. To bolster the notion that party has been made fully aware of the other's financial health, tax returns for the past several years should be exchanged. The most conservative (and sensible) tactic involves attaching financial statements, tax returns, and other financial documentation to the agreement itself, thereby precluding any claim hinging on the thoroughness and accuracy of financial disclosures.
  4. No fraud, duress, undue influence, or violation of public policy: In lieu of a lengthy discussion of the case law that governs each of these potential grounds for invalidating a California prenuptial agreement, what follows is a short description of what each of these claims entails: Fraud is an intentional concealment of a material fact with intent to deprive the other of a legal right. Duress involves depriving someone of his or her free will by a threat to the safety of his or her person, family or property. Undue influence involves one party taking “grossly oppressive and unfair advantage of another's necessities or distress” or taking unfair advantage of a confidential relationship. Lastly, an agreement may be found a violation of public policy if it (a) seeks to impose moral or religious conduct upon the parties during the marriage, (b) limit child support obligations, or (c) divest the court of the power to make custody decisions.

What happens if I file for divorce and I don't have a prenuptial agreement?

If you are lucky, your spouse will agree to mediate your divorce, and you will enter into negotiations regarding the amount and duration of support, as well as the division of your assets and debts. If you are forced to litigate, you will likely expend a considerable sum on attorney's fees as you attempt to reach a settlement. Without a prenuptial agreement, you are subjecting yourself to the property division and support scheme created by the State of California. Why not retain control and make sensible decisions about how these issues should be handled before marriage?

What types of issues can be addressed in a California prenuptial agreement?

Prenuptial agreements range from fairly narrow (simply clarifying what separate property each party is bringing into the marriage) to very broad (waiving spousal support, limiting each spouse's right to the other's future income, and limiting each spouse's right to inherit from the other). During your consultation with an attorney, he or she will walk you through each of these possibilities.

How much do you charge for a prenuptial agreement?

In the majority of cases, I offer my clients a flat fee ranging from $4,000 to $8,500 to negotiate and draft a prenuptial agreement. On occasion it becomes evident during an initial consultation that a couple's financial situation is particularly complex and/or extensive negotiation will be required to arrive at a final draft, in which case I will suggest a different rate.  In addition to drafting prenuptial agreements, I am also happy to sit with clients who have been presented with an agreement and explain the meaning of each provision.

*free divorce mediation consultation consultation provided if both spouses attend initial meeting

Drafting and reviewing California prenuptial agreements from my office in Burlingame for clients throughout California, including the greater San Francisco Bay Area: San Jose and the Peninsula and South Bay communities of Palo Alto, Los Altos, Sunnyvale, Portola Valley, Menlo Park, Atherton, Woodside, Redwood City, San Mateo, Saratoga, Cupertino, Santa Clara, Campbell, San Carlos, Los Gatos, Milpitas, and Half Moon Bay.

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