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San Jose Divorce Lawyers Advise on Pre and Postnuptial Agreements

The standard recital at a wedding asks partners to be faithful for better or worse until death do thee part. Many times this verbal agreement is broken and a divorce takes place. In a divorce, finances are discussed and divided according to the state laws or according
to any written Pre or Postnuptial agreement made between the two parties. In these cases, divorce lawyers may be called to litigate property and any other finances in the divorce proceedings. If an engaged couple would like to sign a prenuptial agreement, then they should understand what it is. An already married couple can still draft a postnuptial agreement through a San Jose Family Lawyer.

What are Pre and Postnuptial Agreements?

A prenuptial agreement is a written agreement made between two people in the event of a divorce. This contract is signed during the engagement period and discusses how assets and other financial matters will be divided if the marriage should end. A postnuptial agreement works the same way, but is drafted after the marriage has already taken place. Many people who have already been married choose to sign a pre or postnuptial agreement because they have assets from the past or have their children's futures to think about.

Other than the division of wages and earnings, spousal support and property can also be discussed.  Prenuptial agreements that purport to determine matters of child custody and/or visitation, especially for children who are not yet even born, are unlikely to be enforced by the California Courts, so you cannot quite put everything into a prenuptial agreement.

How to Draft an Agreement

When setting up pre or postnuptial agreements, a San Jose Family Law attorney should draw up the paperwork and make sure that both parties actually agree.  Parties often are not comfortable with the agreements, but just like when you sign a contract to buy a new car and you are not comfortable with the price the dealer is charging (but still choose to buy the car), if you agree to the terms, then it is a deal.  No party should sign against their will, and the contract should not be signed until both parties understand the written terms.  If either party does not speak or read English well, a translation might be needed to be certain the written agreement is understood when signed.

When approaching California family law attorneys, paperwork of all financial and property assets should be made available. If one of the parties has a significant amount of debt, they should state that in the pre or postnuptial agreement so that the other party will not be responsible for that if a divorce occurs. A sunset clause is another thing to consider adding to the agreement. If the couple reaches a certain date in the future, then the agreement will expire. They can choose to renew the pre or postnuptial agreement if they wish.

What Happens in the Event of a Divorce?

San Jose divorce lawyers like Thomas Stutzman are familiar with pre and postnuptial agreements. In the event of a divorce, some lawyers will represent both parties because division of assets and property is already stated in a legal contract. However, if parties choose to seek different attorneys, then there are many California family law attorneys available to handle their case. It is the lawyer's job to assess whether the prenuptial agreement is legally valid and whether it applies to all the issues in the case.  Where the parties’ lawyers disagree over the effect of the prenuptial agreement there can be a trial to have the Court determine the agreement’s effect. 

Because it can be costly to have a trial over a prenuptial agreement it is best to have it drafted by a good divorce attorney who has a history of drafting prenuptial agreements and who is familiar with the various statutory presumptions that affect the validity of a prenuptial agreement.  

Thomas Stutzman is a San Jose Divorce Lawyer with over 35 years of experience specializing in divorce and family law matters.  He has been drafting prenuptial agreements as a part of his practice practically since his practice began.  Call him today to schedule a free 30 minute consultation.

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