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Questions about Prenuptial Agreement Laws

Prenuptial agreements determine who owns and has the rights to property and assets acquired before, during and after marriage. Laws on prenuptial agreements vary from state to state, in which can lead to some uncertainty and questions. Below are five of the most frequent prenuptial agreement questions answered by Experts on JustAnswer.

What are the California laws on prenuptial agreements?

A prenuptial agreement allows a couple to decide how they would divide assets in the event of a death or divorce. By nature, prenuptial agreements are essentially contractual. California is a community property state. In other words, California law regards anything earned during a marriage as belonging to the couple, and not to either of the individuals. However, each of the partners in a marriage can also have separate property. Usually, anything received by inheritance or as a gift, and property owned before marriage and brought into the marriage, is considered individually owned property that does not belong jointly to the couple.

California also recognizes a form of prenuptial agreement nicknamed “full opt-out” prenuptial. This is where a couple declares that community property laws do not pertain to them at all. In other words, what is his is his and what is hers is hers. In the event of a divorce, each party gets their own possessions and monetary assets and nothing more. If you have other questions about California law or prenuptial agreements, you can ask Lawyers on JustAnswer.

Is a prenuptial agreement essential to protect a person against the business debts of their soon to be spouse?

Property and debt from before a marriage is generally considered separately owned or owed as the case may be. A prenuptial agreement clearly defines and identifies these properties and debts. It is always advisable to have a prenuptial agreement drawn up before the marriage to safe guard any assets you own prior to marriage. Another measure that you could also take is to keeping your wages, income and money owned prior to marriage in a separate account.

If someone buys property out of inheritance money from a non-joint account, is the spouse entitled to it?

In the absence of a prenuptial agreement, usually the only way to determine that the property belongs solely to one of the partners is if it can be established conclusively that it was bought with ONLY that partner’s money. Most states consider any property bought after a marriage as community property unless it can be traced back exclusively to one spouse. A prenuptial agreement is recommended to address situations such as these because a valid prenuptial agreement overrides the default rules and divides the property as agreed upon by the two partners.

Can a husband and wife create a legally binding contract to give one another assets replacing a separation agreement?

This is most likely to be classified as a post-nuptial agreement. Post-Nuptial Agreements (also known as “postnups”) are similar to prenuptial agreements. The major differences are that a post-nuptial agreement is signed after marriage and that a post-nuptial agreement cannot waive alimony. It is generally used for estate planning but is also a great tool for married couples wanting to divide rights and responsibilities. If you have specific questions that need clarification about prenuptial or post-nuptial agreements, you can ask lawyers on JustAnswer.

Can an individual do a post-nuptial agreement without an attorney?

In most situations, post-nuptial agreements do not have to be drafted by an attorney to be valid as long as they have all the elements of a contract: offer, acceptance, consideration, mutual assent, legality, and capacity.

Five additional elements that are typically required for a valid post nuptial agreement include:

1. The agreement must be in writing.
2. It must be executed voluntarily.
3. It should have a full and/or fair disclosure at the time of execution.
4. The agreement cannot be unconscionable.
5. It must be executed by both parties "in the manner required for a deed to be recorded", known as an acknowledgment, before a notary public (two witnesses and a notary).

Usually, prenuptial agreements are easy to draw up because there are no standard rules to the division of assets and property. While drawing a prenuptial agreement is relatively simple, the hardest part can sometimes be reaching an agreement on the division of property. You can ask Family Lawyers on JustAnswer to get clarity on your specific questions about prenuptial agreements.

Ask a Family Lawyer

Ely
Ely, Counselor at Law
Category: General
Satisfied Customers: 9380
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
7286322
Type Your Family Law Question Here...
characters left:
6 Family Lawyers are Online Now

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Family Lawyers are online & ready to help you now

Ely
Counselor at Law
Satisfied Customers: 8085
Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
LawTalk
Attorney and Counselor at Law
Satisfied Customers: 6424
27+ years legal experience. I remain current in Family Law through regular continuing education.
FiveStarLaw
Lawyer
Satisfied Customers: 6336
25 years of experience helping people like you.

Recent Prenuptial Agreement Questions

  • Ok in Texas, the person that marries you, the minister, or

    Ok in Texas, the person that marries you, the minister, or whatever they are called. I remember reading somewhere that they cant if they have a felony. She got a legitimate marriage license and everything but her dad was the one that married us, and he is a felon. Does that matter? Can I prove that he is and it was missed and the whole married is invalid?
  • If I had a custody agreement done already in court, signed

    If I had a custody agreement done already in court, signed by a judge with my lawyer, before my wife and I got married (aprox 3 months before marriage) and we decided to get a divorce 6 months later, would that custody still stand in court? Its a partial custody where I have the executive right to decide where my son lives.
  • My unmarried daughter lives with the father of their two year

    My unmarried daughter lives with the father of their two year old and wants to break up and leave. Not only does she want to leave, she wants to move down to Georgia with us, her parents, and the child to go to school full time.
    Can she just leave to attend school with the child? She wants to give the father visitation and will compromise travel to do it. What should she do?
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