Prenuptial Agreements

At Rios & Rios, LLP, part of our practice includes all issues related to prenuptial agreements.  We regularly draft, negotiate, and review prenuptial agreements, as well as litigate (when necessary) all issues related to prenuptial agreements.  While many lawyers will advertise their services in this area, it is recommended that any party seeking representation for prenuptial agreements hire a certified specialist in family law who regularly represents clients entering into prenuptial agreements.  Family law is a very complex area of law involving not only the termination of your marriage and decisions impacting your family, but the division of businesses, property, pensions, and the payment of spousal support (all of which can be included in a prenuptial agreement).   In the event of a dissolution and there is an issue from a prenuptial agreement that requires court intervention, it will be handled in the family court by a family law judge.  Certified specialists in family law know the family court system, the family law judges, and law.     

Prenuptial Agreements are contracts between prospective spouses that allows them to alter their marital rights and obligations.  Individuals enter into such agreements for a variety of reasons.  The most common reasons that lead to the decision to enter into an agreement:  Individuals who want the sole decision making authority over assets they own prior to marriage; Individuals who are entering into a second marriage who own assets that they would like to keep for their children or other people; Individuals who own businesses; and Individuals who want to limit or eliminate the payment of spousal support in the event of dissolution/divorce.

While some people enter into a prenuptial agreement to protect an inheritance they may receive, it is not necessary to do so if that person takes steps to protect their inheritance.  By law an inheritance is the separate property of the receiving party.  As long as you maintain the inheritance asset (property, money, etc.) as separate property it does not need the protection of a prenuptial agreement.  If a party inherits money, depositing it into a separate bank account titled in that person’s name (without the spouse on the account) and not depositing community funds (money earned by a spouse during marriage – which is just one example) into that same account will maintain it as separate property.  While the above is true, I do recommend a prenuptial agreement when a party is going to receive substantial assets from an inheritance.  This provides two layers of protection for an inheritance.  The prenuptial agreement is one layer of protection and the fact that the party keeps the inheritance separate from community assets is a second layer of protection.

It should be noted that some things cannot be included in a prenuptial agreement.  You cannot include provisions that affect child support or custody and visitation of children.  You cannot include provisions that require children to be raised a certain religion.  You cannot include provisions that require one spouse to provide sexual services to the other.   You cannot include provisions that violate public policy.  The above is not an exhaustive list. 

It is not wise for one to decide to enter into a prenuptial agreement at the last moment as serious thought and planning allow for the parties to work through the process.  Parties should discuss entering into an agreement early on and then make sure they move forward in a timely fashion, at least 2 or 3 months before the wedding (at a minimum) so that the agreement is completed and signed by all well in advance of the wedding.   It is recommended that each party be represented by counsel otherwise an issue as to whether a party not represented by counsel voluntarily entered into the agreement.  Under such a scenario it is deemed that they did not enter into the agreement voluntarily and creates additional burdens at the time of enforcement.          

If you would like to discuss whether or not a prenuptial agreement makes sense for you or if you have any questions, please contact our office and set up a consultation.