Do you Need a Prenuptial Agreement?
Everyone who gets married enters into an agreement. The agreement is governed by the laws of the state in which you marry. If you divorce, the Family Code applies and if you die the Probate Code applies. It is only when you decide that the laws of your state are either too complicated or should not apply in your situation that you need a prenup.
Protecting Against Risks
Prenups are not appropriate for everyone. Prenups are used when one or both of the parties have considerable wealth; the financial exposure at the time of divorce is great or the process of a divorce would be too expensive without a prenup.
Protecting your Children
Prenups are also appropriate for a couple entering into a second marriage. These couples often have children who may need some financial guarantee in the event of death or divorce. Often people entering into second marriages have retirement plans, businesses and savings that they need to protect.
Protection from Debt
If a person is entering into marriage with someone who has significant debt, protection may be appropriate.
Protecting your Business
If a person has a professional practice or business, a premarital agreement may protect them from expensive appraisals of the business and complex litigation.
Protection from Excessive Alimony Awards
California courts often order spousal support that can be between a third to 40 % of the payor's net income, less one-half of the payee's net income - regardless of income and gender. Both men and women may find it prudent to limit their exposure to alimony in the event of divorce. The spousal support award is in addition to any child support award - which cannot be limited by agreement.
Interstate, International Prenups, and Marital Regimes
It is not the law of the state of country you get married in, it is the law of the place you are divorced that will apply in the event of a divorce. Many people who marry outside of the United States may find that their election of a separation de biens (or other separate property marital regime) will not be enforced. Even couples in other states who divorce in California, may find their agreements do not apply or violate public policy. We consult with attorneys in other states and countries to ensure that their agreements will be enforced in California.
Peter M. Walzer and Christopher C. Melcher are both Certified Family Law Specialists. They are both AV rated lawyers by Martindale-Hubbell. Mr. Walzer is the founding partner of the Southern California law firm Walzer & Melcher LLP focused exclusively on family law and is listed in Best Lawyers in America and SuperLawyers. He is a Fellow of the American and International Academy of Matrimonial Lawyers.
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