What You Need To Know About Prenups in Contra Costa County, California

Every year, people become engaged to be married. During the excitement of planning to join two lives together, most people do not want to think about the possibility of divorce. After all, nobody enters marriage with the intention of getting a divorce. Divorce does happen, though, even to the best-intentioned people. In 2018, approximately 780,000 people were divorced in the United States. Taking some time to consider how you will divide up property should you become divorced can be incredibly helpful over the long run. 

Contra Costa, California Prenup Lawyers

If you are getting married, it is advantageous to take the time to consider how you would divide up your property. Prenup agreements are becoming more popular because they help ease the divorce process. If you are considering a prenup in Contra Costa County, our lawyers can help. Taking the time to speak to one of the skilled lawyers at Ham Family Law can help you tremendously. Contact our family Contra Costa County law firm today to schedule your initial consultation. 

What is a California Prenup Agreement?

California prenuptial agreement is a contract that two people sign before they are married. Prenup agreements detail how you will split up the marital assets and debts should you become divorced. Typically, prenups discuss what will happen to assets that both partners bring into the marriage as well as assets that the couple gathered during the marriage. By signing a prenup agreement, both spouses are protecting their interests. They will ensure that should they ever divorce, the process will be much easier. 

California Laws Related to Prenuptial Agreements

The Uniform Premarital Agreement Act of 1986 (UPAA) governs prenup agreements in the state of California. This law sets forth the requirements of a valid prenuptial agreement in the state of California. A prenup agreement is essentially a contract between the two spouses who will be getting married. To be considered a valid prenuptial agreement, the contract must meet the following requirements:

  • Both parties must be mentally competent 
  • Both parties must consent to the prenup and be able to consent
  • The agreement must be free from fraud or mistake 
  • When one or more parties does not speak English, the prenup must be translated into the native tongue of the non-English speaker(s)
  • The agreement cannot be unconscionable 
  • Each partner must have his or her own independent legal counsel, or each party must waive the right to independent legal counsel before signing the agreement
  • Both parties must have all of the information about the property owned by the other person and the financial status of the other person
  • Each partner must wait at least seven days after receiving the prenup before they sign the agreement
  • Each person must receive full disclosure of the conditions, rights, and terms of the prenup.

Do I Need to Hire a Lawyer to Create a Prenup?

No. According to the Uniform Premarital Agreement Act, you do not need to hire a lawyer to create a prenup. However, if you do not hire a lawyer, you need to waive your right to legal counsel. You will need to understand the potential negative consequences of not hiring an attorney. When waiving legal counsel, you will need to sign a separate document stating that you have received information about the consequences of waiving your right to counsel. The document must clearly state who provided you with information about the negative consequences of not hiring an attorney.
On a practical level, it is wise to hire an attorney to assist you throughout the entire prenuptial agreement process. Once you sign a valid prenuptial agreement, it will become binding should you get a divorce. In other words, if you signed a valid prenup, you must do what it says after you get divorced. Without hiring a skilled family lawyer to help represent your interests, you could be taken advantage of by your spouse during the divorce process. At Ham Family Law, we can help make sure that your best interests are represented in the terms of the prenup agreement. 

How do Prenup Agreements Affect Community Property?

You may be wondering whether a prenup agreement will trump California probate laws. California is a community property state, meaning that if you do not have a prenup, the state will divide any community property up equally between the two divorcing spouses. California probate law divides the property up into community property and separate property. Generally, separate property is a property that one spouse owned before the marriage. Community property is property gained during the marriage. 
A prenup agreement can override the community property laws in California. For example, a prenup agreement could treat each spouse's separate property as community property. Should a prenup do so, then all property would be divided equally. Or, a prenup could say that one spouse will receive 70% of the community property. In a prenup agreement, you have the power to decide how your property will be divided.

How do Prenup Agreements Affect California Inheritance Laws?

California has special rules about spousal inheritance. When someone dies without a will, California probate courts will divide up and distribute their property according to California's intestate laws. A person in California can create a will that completely disinherits his or her spouse, stating that the spouse is to receive nothing. Normally, California would not enforce that provision of the will. Instead, the court would enforce rules that give some assets to the spouse regardless of the terms of the will. In a prenup agreement, however, you can waive your right to spousal inheritance, as long as doing so does not negatively impact your minor children.

Our Contra Costa County Prenup Lawyers can Help

Prenup agreements are a powerful tool that can give you flexibility over your financial future. However, when they are not carefully created, one spouse can be unfairly disadvantaged. If you are interested in creating a prenup agreement in Contra Costa County, we can help. Contact the family lawyers at Ham Family Law to schedule your initial consultation today.

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