Get Your Legal Documents Right!
Legal documents such as postnuptial agreements and prenuptial agreements can fail if you don’t get it right. Drafting family law agreements can be complicated. As a result, we often see folks get themselves into deep trouble with the DIY approach.
When drafting a contract, it is easy to omit important provisions or phrases. Unfortunately, this may result in a bad outcome.
Maybe you are doing it yourself and just want a pair of legal expert eyes to catch the finer details. Perhaps you need us to craft an agreement from scratch. In either case, we have the expertise to help you get it right.
Types of Family Law Agreements
At Weber Dispute Resolution, we can handle just about any type of family law agreement. So, here is a short list of some of the agreements, for which we are experts:
Premarital Agreements / Prenuptial Agreements
An agreement signed before marriage to govern how you and your spouse will interact on money issues in the event of a divorce.
For example, people frequently include provisions for separate property assets to remain separate. Some prenups clarify how couples will or won’t create community property.
Additionally, prenuptial agreements have provisions that become part of an estate plan. They can affect the distribution of assets for a surviving spouse.
Think you don’t already have a prenup? Think again.
Simply because you haven’t already entered into a prenuptial agreement doesn’t mean you don’t already have one. It just may have been written by the legislature in Sacramento.
The terms of the marriage contract are set out in detail as part of the California State Family Code. You can take control of the terms of that contract, however. A premarital agreement enables you to set your own terms.
It’s good to discuss expectations before you get married.
There are so many issues people should discuss before they get married. In addition to questions about property settlements in the event of divorce, parties can agree on future spousal support, title to the property and other issues.
With older couples, some provisions may include understandings about estate planning and what to leave children from a previous relationship. It’s good to talk about these issues before you get married. The prenup process forces that conversation.
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Technical Rules for an Enforceable Prenup
There are very technical rules that you have to follow for the agreement to be enforceable. So be careful and hire a lawyer to get the technical requirements right. (See also: Prenuptial Agreements in California: Dotting the i’s and crossing the t’s) If you take the time to reach an agreement, you might as well get the formalities right. Some California state law requirements for enforceability include:
- Exchanging a disclosure of assets and debts
- Exchanging a disclosure of income and expenses
- The parties have seven days to review before they sign the agreement
- Spousal support limitations must be conscionable at the time of enforcement
- Child support limits or waivers are not enforceable
- Child custody provisions are not enforceable
- The parties have counsel sign off on the agreement
An agreement signed after the date of marriage to help govern how you and your spouse will interact on money issues.
A person who enters into a postnuptial agreement is looking to clarify the financial expectations between the parties. Terms include understandings regarding separate property, community property and title to property.
The postnuptial agreement is enforced using rules from a different part of the family code than prenuptial agreements. So, some people do postnuptial agreements in addition to a prenup. The postnupt becomes an added bit of insurance in case the courts don’t enforce the prenup.
Additionally, postnuptial agreements can help strengthen a marriage when there may be a conflict over a particular financial issue. If desired, we can work with marriage counselors to help couples craft postnuptial agreements that strengthen the marriage and reduce conflict.
An agreement between spouses to convert separate property to community property or community property to separate property.
There are important rules that must be followed for a transmutation agreement to be enforceable. They are similar to the requirements for postnuptial agreements.
For example, courts are suspicious when the terms seem to favor one party over the other without sufficient disclosure or consideration. Additionally, there are strong fiduciary duties owed between spouses for which a poorly drafted agreement can violate. So, the best policy is to have a lawyer look it over to ensure enforceability.
A contract for unmarried folks to govern their relationship to include money issues.
Similar to a prenuptial agreement, it is not a court order. However, it is enforced as a contract.
Remember, the California Family Code does not protect unmarried spouses. There is no such thing, for example, as a common-law marriage in California. A cohabitation agreement is a great way to add clarity to the financial understandings of unmarried couples.
Domestic Partnership Settlement Agreements
An agreement to settle the terms of ending a domestic partnership.
With the change in law allowing for gay marriage, we see a lot less of these in practice. Contrastingly, a lot more same-gender couples marry and therefore sign marital settlement agreement or legal separation agreement.
Marital Settlement Agreements / Legal Separation Agreements
An agreement to settle the terms of your divorce or legal separation.
This document becomes part of your divorce decree or judgment of legal separation. It memorializes the terms of the settlement. As a result, it’s the primary instrument people negotiate during divorce proceedings.
Legal Separation Agreements or Marital Settlement Agreements include provisions for child custody, child support, alimony, and equitable distribution of marital property. If properly incorporated into a divorce decree, the courts will enforce the terms of your agreement as a court order.
A legally binding contract to govern the terms for a married couple who is separating.
It is not part of a court file and is not a court order. It is, however, enforced in contract.