In this process, the lawyer should identify the separate property and significant debts owned by each spouse before the marriage to ensure they keep ownership in the event of a divorce. Under most marriage laws, ownership of separate property ends with the beginning of the marriage. A divorce case can become contentious if a spouse needs to prove ownership of specific assets. So prenups are crucial for establishing your rights to your property.
In most states, anything acquired or earned during the marriage becomes the property of both parties. States like California, which follows community property law, will divide property in a 50/50 split when you get a divorce. If you and your spouse want to divide community property differently, the premarital agreement will clarify this.
Both parties have the option of agreeing to a set amount for spousal support, or they can waive it entirely by mutual consent. However, both parties should be aware that circumstances may change. The court will often not enforce a prenup if it severely disadvantages one party, even if they voluntarily and knowingly entered into the agreement.
Some prenuptial agreements may include a morality clause such as an infidelity clause. If a party discovers their spouse is having an extramarital affair, the cheating spouse must award the injured party compensation like a monetary sum. Such a clause is uncommon, and most states will be reluctant to enforce it since there is an inherent difficulty in proving infidelity in court due to the document having unclear wording.
Yes, you can write a prenup without a lawyer. It isn’t a legal requirement that you have one when writing the agreement, but you should at least hire a lawyer to review the document to ensure it follows your state’s requirements. What is highly recommended for the document to be considered valid in the court’s eyes is for both parties to individually seek legal counsel when negotiating. Otherwise, the court may feel that both parties do not fully understand the terms outlined in the document and decide not to uphold the agreement.
No, you can’t get a prenup after marriage because once the parties are married, a different set of rules regarding ownership and division of property comes into play. A document called a postnuptial agreement can be used after the parties are married. It divides property in the same way, and it is subject to the same legal requirements as a prenuptial agreement.
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