In San Diego, California, prenuptial agreements [sometimes referred to as pre marital agreements] are not uncommon. In San Diego, there are many persons who marry after having another relationship [which may or may not include marriage] who have children. In these factual situations, it is important that the issue [offspring or children] from the previous relationship be protected regarding their inheritance and distribution of the separate property of their relative upon death. In addition, in the event of a divorce or legal separation, the prenuptial agreement will protect the separate property assets from distribution as a community property asset. These are very complicated and the character of the asset can change easily from separate property to community property by transmutation or commingling even with a prenuptial agreement and legal counseling and representation both in the preparation of the prenuptial agreement and execution are essential. In addition, for further protection and as an advanced legal strategy, our office recommends a revocable living trust to be the basis for the property placed described in the pre nuptial agreement. This is discussed in more detail in the last paragraph of this article.
The law in San Diego, California is in favor of community property and prenuptial agreements are disfavored. There are many requirements for the pre nuptial to be valid and upheld in court in the event of a challenge to the enforcement of the agreement. There are many matters which can be contracted in the prenuptial agreement and includes the following: choice of law; ownership and rights to a life insurance policy death benefit; making of an estate plan; disposition of property in the event of death, divorce or legal separation; the right to control property and also spousal support as well as others. All pre nuptial agreements should be reviewed by an experienced attorney and the attorney will then sign the agreement as well. In the case of spousal support, the pre nuptial is not enforceable unless an attorney is representing the party against who the agreement is being enforced and the enforcement is not unconscionable at the time of the enforcement of the agreement and not at the time the pre nuptial was entered into.
In San Diego, the Judges look to the Family Law Code to determine whether the pre nuptial is enforceable or not. There are many instances in which the pre nuptial will not be enforced such as the spousal support provision for non represented signatories and parties. In addition, if the parties did not execute the pre nuptial voluntarily, did not have adequate knowledge of the property or financial obligations of the other party, did not have an attorney or waived having an attorney after being informed of same, did not have 7 calendar days time to review between when the party was initially presented the agreement and when advised to find independent legal counsel and the time the pre nuptial was signed and many other factors including any factors which the Court would deem “relevant” then the pre nuptial may not be enforced. In addition, of course, the pre nuptial has to be in writing and oral pre nuptial agreements are not enforced. As such, it is crucial to insure that the drafting and procedures are followed if enforcement of the agreement will ever be sought. In San Diego, it is not uncommon for a motion to be brought to “set aside” the pre nuptial on the above grounds or others. As such, if there is a pre nuptial agreement in your divorce or legal separation case, you need to seek an experienced attorney for an analysis under the law as to the validity of the agreement and the enforcement or non enforcement of the pre nuptial.
There are also issues unless both parties have legal representation and the attorneys sign the pre nuptial on behalf of both of their clients. If the goal is to have the pre nuptial enforced and one party is not represented, this increases the likelihood that the prenuptial will not be enforced. There are many rules for attorneys who are preparing pre nuptials when the other party is not represented. At our law office, we no longer prepare a pre nuptial agreement given the recent changes in the law unless both parties have legal representation due to the enforcement issues in the event of a divorce or legal separation. What is the benefit of a pre nuptial agreement if it cannot be enforced when needed?
The current legal strategy our office uses is to prepare a revocable living trust at least thirty days prior to the wedding and solemnization of the marriage. This revocable living trust is used as an estate plan and defines the separate property “universe” which is then listed in the pre nuptial agreement for the assets and financial position. This gives offspring of the prior relationship their distribution upon death of their relative and is an estate plan which is recognized by the probate courts. This will also save the offspring and any other beneficiaries probate fees and costs as well as expediting the distribution of the estate and privacy in the distribution. It is crucial that there is no commingling nor transmutation of the assets in the revocable living trust or in the pre nuptial and competent and experienced legal advice is necessary for not only the preparation of the documents but for advice on what to do, and more importantly what not to do, in order to obtain the goal of having the separate property remain separate.
In conclusion, if you are considering getting married and have children from a prior relationship or other persons [beneficiaries] who you would like to leave your separate property and estate other than your fiancee and intended spouse, it is crucial to have the documents prepared timely and our office urges all to contact us at least sixty (60) days prior to the wedding and solemnization of the ceremony.