Prenup Issues and Legalities

A prenup is an agreement that is drawn up before the marriage or civil union is entered into. In it, the husband and wife outline in black and white where they want to live, how they want their property distributed (which is also called assets), who will be responsible for the children (who will also be named), what should happen to the estate during the course of marriage/civil union, and what must happen after the marriage or civil union is over (what is referred to as the termination of the marriage). Basically, a prenup prevents your wedding from going bad and preserves your good name throughout your lifetime. A prenup is legally valid in most states if it was signed by the husband and wife under state law before the marriage or civil union. However, it can vary slightly depending on where you live.


the husband nor wife can change the document

Many people wonder how getting divorced and still keeping the prenup will work, since neither the husband nor wife can change the document. There are a few things that you can do to make sure that your divorce proceeds smoothly regardless of what happens with your prenup. Here are three suggestions from a San Diego family law attorney that might help.


Avoiding a Prenup

If you and your partner both agree to get married, one party cannot change the prenup. In California, this means that California courts will not allow one party to insist on a modification based upon the existence of a Prenup. Unfortunately, many unscrupulous lawyers have nothing to lose and lots to gain by making a client file for divorce using a Prenup. These lawyers will tell clients that a Prenup is a legally binding agreement and that courts are fine with it (even though they’re not). In most cases, such lawyers will try to get one party to file for bankruptcy protection so that the other party has to pay for the complete divorce, even if it means that the client is divorced in reality.


Keeping Assets and Debts Simultaneously

Since prenups are not legally binding, courts will not enforce them, so it’s best to keep assets and debts together after marriage. While some courts may not consider divorce, at least half of the states require couples to keep their marital property and debt separate in the event of divorce. However, you need to be aware that some states require that you split assets over several years, as opposed to the short term that some prenuptial stipulate.


Prenup Divorce and Alimony

Prenup agreements often specify that the couple must maintain their marital residence until they remarry or until the time of the death of one of the spouses. However, some courts have allowed an ex-spouse to submit an agreement permitting alimony to continue while the other spouse is under the threat of a Prenup. Again, a lawyer specializing in this type of case should be consulted for further information. This sort of agreement might also affect future business transactions, like credit cards and insurance policies, since alimony payments can be stopped.


Prenup Divorce and Child Support

Like many other aspects of divorce law, alimony and/or post-divorce child support varies greatly by state. Most states require that a wife contributes towards her husband’s spousal support; this could mean that the husband takes a percentage of his wife’s salary or obtains it through some other method. Some states require equal parenting time, which means that both parents receive equal parenting time before their children are born or adopted. Prenup agreements may specify the division of property and/or child support, so it’s a good idea to consult with a family law attorney who specializes in prenup cases.

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