Myths of Premarital Agreements

Posted by: Gerald A. Maggio, Esq.

Top divorce mediation attorneys Orange County; California Divorce MediatorsPrenuptial (premarital) agreements have become a tool that spouses and couples are increasingly using to shore up the finances and even up the post-marital distribution of assets to avoid any kind of issues after separation. Despite the emerging presence of prenuptial agreements, there continue to be a number of myths about prenuptial agreements.  Here is a list of some of these myths:

Prenups are just for wealthy people

That perception is based on the past. People believe that premarital agreements are for the wealthy couples. In reality that is not the case. Prenups are for anyone that has the slightest bit of confidence in their abilities and knows that they’ll reach a nice financial position in live. While you may not be rich, you’ll want to have successful marriage. Prenuptial agreements clearly lay down the financial status of the spouses leaving little to imagination and allowing for a open and honest relation.

Prenups favor the rich spouse more than the poor one

Once again this is a perception rooted in the past. Today, prenuptial agreements only exist when they are fair to both spouses and if they protect the interests of both. Unfair prenups that take the side of one party and unduly miserly on the other spouse will not hold any legal authority. Prenuptial agreements are used as a clear cut division of assets predetermined in the event of a divorce instead of a tool to save your assets and monetary belongings.

Prenups need to be extensive, detailed and should have all the details in the world

The fact of the matter is, that is not the case at all. Prenuptial agreements are designed to determine the post Orange County divorce status of some, many or all aspects of finances, etc. It is actually dependent on the two spouses making the agreement to determine what it would cover and what it shouldn’t. A prenuptial agreement needs not be extensive it can include even a few things.

Prenups are unromantic and can ruin a marriage

Knowing something is better than living in its ignorance. There are some people that believe a prenuptial agreement which is effectively a part of the planning for a divorce. This in reality is not the case; prenuptial agreements are not made simply in anticipation of a divorce. If anything they are created to make sure the two spouses are clear on the financial issues and avoid any bitterness in case they go through a divorce.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”

Same-Sex Prenuptial Agreements: Special Considerations?

Posted by: Gerald A. Maggio, Esq.

Top divorce mediators Orange County; California Divorce MediatorsIn California, same-sex couples can benefit from all of the legal rights and protections that the state offers to married couples.  As a result, many same-sex couples in California believe that the creation of a prenuptial agreement involves generally the same issues and considerations as it would for any other couple.

But there are many critical reasons that same-sex couples – even those without children – should take the time to consult with a family law attorney before the marriage.  In a national context, married same-sex couples still face a number of legal complexities that other married couples do not face.  Carefully-drafted premarital agreements can help guard against those complexities.

Many U.S. states still do not recognize same-sex marriage.  And just one of those states, Missouri, recognizes same-sex marriages legally performed in other states*  (*as of the time that this article was written).  The other states that do not recognize same-sex marriage also refuse to recognize many of the legal rights of married same-sex couples, including the right to divorce.

Same-sex couples married in California may obtain a divorce from the California courts if they reside in a state that does not recognize same-sex marriage.  But the enforcement of a prenuptial agreement for same-sex couples residing in those states can be problematic, especially if the enforceability of the agreement rests on the recognition of a marriage or a divorce.

Fortunately, this issue can be put to rest at the outset through an alternate method of drafting the premarital agreement.  The American Bar Association (ABA) recommends that the agreement be drafted as a contract that is enforceable regardless of whether the marriage is recognized or not. The result would be a contract recognized in all fifty states. This alternative way of drafting a prenuptial agreement should be discussed with a family law attorney experienced in addressing legal issues facing same-sex couples.

Same-sex couples who have children or who are planning a family should also consult an attorney prior to the marriage in order to understand how the family can be protected through provisions in the prenuptial agreement in case the family moves or travels extensively out-of-state.

Same-sex couples may also want to take the time to create additional legal protections before the marriage, beyond the prenuptial agreement.  The creation of a health care proxy may be especially important for same-sex couples, as the ABA also notes.  A married same-sex couple traveling to or residing in a state that does not recognize the marriage may face difficulties in a medical emergency – family visitation rights and decision-making rights may not be afforded to the spouse by hospital staff. A pre-existing health care proxy may help afford many of these rights.

To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”