What most couples do not realize as they contemplate marriage is that they already have a prenuptial agreement, but one that might not best serve their unique interests. California law effectively provides a default contract for couples about to marry should they later decide to divorce. This default contract applies to all marriages, regardless of the number of children they may have, the amount of separate property each brings to the marriage, or the size of their estate at the time of marriage or divorce. If the terms of that default contract do not fit your circumstances, you may want to modify that agreement with your own — called a prenuptial agreement — to provide peace of mind and harmony from the outset.
At the outset of a marriage, there can be a lot of tension because of concerns about finances. A “prenup” clarifies those uncertainties. A prenuptial agreement is a contract between parties about to marry that spells out property division and spousal support should they decide to divorce. Couples might shy away from practical discussions about their financial arrangements thinking that it might interfere with the romance of courtship. However, those couples coming into a marriage with separate property and/or minor children from a previous marriage would do well to consider discussing issues in advance. As a result of the discussions and decision-making that results in a prenup, the couple can move forward in their marital relationship without the uncertainty of the state of their finances.
DMG can help couples frame the discussion in positive ways so that both divergent and convergent needs are clear. Couples benefit from such clarity because they then can then make collaborative decisions that are best for each party and any children involved.
Although embarking on a prenuptial agreement might seem anti-romantic to a newly engaged couple, the resulting financial discussions and the clarity achieved might help the couple avoid future financial problems. In discussing finances, many of our couples have said to us, “If we had had this discussion early in our marriage, we wouldn’t be getting a divorce now.” In this respect, a prenuptial agreement might actually prevent divorce.
In an age in which one in three first marriages and half of second marriages end in divorce, a prenuptial agreement can best be seen as an “insurance policy” that helps couples maintain control over the division of their assets in the event of a divorce. We can also help married couples develop a post-nuptial agreement, necessitated by changing conditions.
After the couple has come to agreement on all their decisions, DMG prepares a Memorandum of Understanding (MOU). The MOU is used as the basis for preparation of the prenuptial (or post-nuptial) agreement by an independent attorney.