When it comes to prenups, few fight them harder than celebrities. Take for example, Real Housewives of Beverly Hills’ Adrienne Maloof and estranged hubby Paul Nassif. The couple has split up and have a prenup, but that may not stop Nassif from going after the Bravo personality’s bank account. You may wonder how is this possible. The reality is that just because you have a prenup, it does not mean you can get away with depriving your soon to be ex-spouse of what they are legally entitled.
Generally, a prenup needs to be reasonable and follow the law to be enforceable. More specific prenuptial agreement requirements should be discussed with a California family law attorney.
Thinking about a prenup? – In addition to a prenup agreement consider a cohabitation agreement. It could be effective in family court.
Legal Requirements of California Prenuptial Agreements
The Uniform Premarital Agreement Act (UPAA) has applied to California prenups since 1986. In general, this law states that written prenuptial agreements signed by both parties will automatically become effective once the couple marries. A prenup can cover a couple’s present and future property rights, as well as other matters related to the marriage.
It is important to understand that a prenup follows the principles of general contract law. Therefore, a prenup requires valid consent. This means that a person must have the mental ability to consent and cannot be the result of fraud, inappropriate influence or mistake.
A couple can agree to modify, or even completely give up, rights to spousal support in the event of divorce, as long as the result is not “unconscionable” or extremely unfair at the time of enforcement.
What a Prenuptial Agreement Cannot Accomplish
There are certain rights that cannot be waived. Couples about to be married cannot waive the right to share in an ERISA governed employee benefit plan. Federal law states that only a current spouse can do that. The agreement also can’t include anything that is illegal or against “public policy.”
Just as a prenuptial agreement is intended to protect each spouse, it cannot be used to gain money simply by getting a divorce. A court is likely to closely examine any agreement where one spouse receives huge sum of money or an award of valuable property simply as a result of the divorce. The exception is, for example, if the spouse to receive the award sacrificed the right to spousal support from a previous marriage to enter into the new marriage, the agreement is likely enforceable.
Creating a prenup requires a strong understanding of family law and contract law. It is recommended that any person entering into a prenuptial agreement, speak with a family law attorney.