Same Sex Prenuptial Agreements Attorney in Orange County, CA
Same sex couples have a constitutional right to marry in California. Just like their heterosexual counterparts, same sex partners or couples enjoy the same rights of support, property, taxes, inheritance, and other matters arising from marriage. Before getting married, same sex couples can also execute prenuptial agreements (“prenup”) that contain provisions on the respective property rights and duties of the spouses.
Basic Features of a Premarital Agreement
A prenup, also referred to as a premarital agreement, takes effect upon the marriage of the parties. A prenup only needs to be in writing and signed by the parties who intend to be bound for the agreement to be valid. The terms of a prenup may be modified or cancelled as long as the modification or revocation is contained in a written agreement that is signed by the parties.
Benefits of Prenuptial Agreements
A well-crafted prenup can be used to:
- Protect a person’s individual assets
- Shield one party from the debts or obligations of the other party
- Determine how assets will be passed upon the death of either spouse
- Avoid long and expensive property disputes arising from divorce
Contents of a Same-Sex Prenuptial Agreement
Many prenuptial agreements generally deal with property rights. Couples who are in the process of writing their prenups have a wide range of subjects to cover such as:
- Classification of specific property as community or separate
- Rights of spouses to community and separate properties during the marriage and upon dissolution of marriage
- Control and management of property, including the disposal or distribution of property in the event of a divorce
- The making of a will or trust to implement the provisions of the prenup
- Ownership rights and disposition of death benefits from a life insurance policy
- Choice of law governing the construction of the prenup
- Other provisions that are not contrary to law or public policy
Due to the overriding consideration of upholding the best interests of children in a marriage, any prenup provision that adversely affects the rights of a child to support from either parent may not be enforceable or upheld in court.
Prenuptial agreements can be a wise choice for same sex couples planning on getting married in California. Talk to a California family law attorney who can help you create a prenup that addresses all your concerns about properties you own separately and in common.
Enforceable Premarital Agreements
A premarital agreement must be able to pass the scrutiny of the court before a court will enforce its provisions. Under Section 1615 of the California Uniform Premarital Agreement Act, a prenuptial agreement must satisfy certain conditions before a court can enforce it against another party.
Key features for enforceability include:
- Financial disclosure before its execution
- The premarital agreement must not be unconscionable
- Coercion should not have been present during its execution
- The parties must understand the agreement they are signing
- A minimum period of seven days must have passed from the time the prenup was first presented and when the agreement was signed
To ensure that a prenup may later be enforced in court, parties who are engaged to be married should retain an experienced lawyer who can help them create an enforceable agreement between the future spouses, as well as review proposed terms before parties sign a binding agreement.
Another advantage of having an experienced family law attorney on your side is the lawyer’s guidance in initiating important discussions with the other party, leading to positive outcomes for all concerned.
Same sex couples in California tend to be older and already in the peak of their careers. Each party often brings significant assets to the marriage and may be concerned about protecting those assets during the marriage or in case of divorce. A premarital agreement can help parties anticipate future scenarios and reduce the usual friction that can arise in property disputes during a divorce or separation.
In Mission Viejo, California, the Law Office of Landon C. Villavaso has counseled clients on the terms of prenuptial agreements. We are prepared to evaluate your situation and create a solid prenuptial agreement that addresses all your concerns and needs. Call us today at (949) 257-5188 or contact us online to arrange for a consultation with one of our experienced attorney.