It is virtually uncontestable to say that marriage is a big commitment that should not be taken lightly. Oftentimes, once a couple gets engaged, they are wrapped up in their feelings for each other, planning for their wedding day, and navigating the merging of two families. As a result, more practical matters can be overlooked which can lead to problems and conflict for the couple down the road.
The purpose of this article is to provide information on the two types of prenups and the situations in which we, at Klueck & Hoppes, would recommend each of them.
First, a Type A prenup is a document that describes formally and in detail the assets and debts that both parties are bringing into the marriage. These items ordinarily remain each parties separate property throughout the marriage.
While some people sometimes believe that a prenup is a “rehearsal for divorce,” a Type A prenup does NOT fall into that category. History tells us that all marriages end in one of two ways: death or divorce. As such, a Type A prenup is advantageous in both situations, not simply for divorce. At the time of one’s death, it is important to know what assets and debts a person brought into the marriage. Creating a Type A prenup can facilitate this process and reduce the burden on the family members who have to handle the process of probate. As such, it is our recommendation that 100 percent of couples obtain this type of prenup.
In our experience, many couples do not speak with an attorney about their finances prior to marriage unless they are seeking information about a Type B prenup (discussed further below). We believe this is a mistake. It is common knowledge that money frequently causes conflict in relationships. But, more than that, research has shown that couples who fight once a week about finances are 30 percent more likely to get divorced. That is a significant increase in the likelihood of divorce and couples need to avoid any unnecessary disputes over finances. Having both parties list what they own and what they owe prior to the marriage, when they are getting along, can be of great benefit.
Yet, many couples still choose to avoid detailed discussions about their financial assets and obligations. Our society preaches that topics like politics, religions, and, yes, money, are taboo and shouldn’t be discussed. We can understand this position in a dinner party environment, but when it comes to a private conversation between two individuals who are merging their lives together, we believe that it is imperative for both parties to enter a marriage with their eyes open to each other’s financial pictures. When it comes to money, we believe that ignorance is not bliss.
Second, a Type B prenup is a document that accomplishes everything that a Type A prenup does, but also “changes” California law as it applies to this individual couple. This document seeks to accomplish goals like assigning property rights and obligations, establishing life insurance ownership rights and the disposition of death benefits, and precluding the option for or limiting spousal support, also known as alimony, in the event of dissolution of marriage. This document is more expensive to create and is harder to defend in a divorce case - but can be appropriate in certain situations.
If you are considering getting a prenup, it is important to know that California law requires a 7-day wait period between first viewing the prenup and signing it in order for certain terms to be upheld. In fact, California Family Code §1615(c)(2), a portion of the body of law that governs prenuptial agreements, goes so far as to declare a prenup unenforceable if it’s executed in less than 7 days, as it is deemed not to have been signed voluntarily. However, this rule may not apply if both parties are represented by counsel.
At Klueck & Hoppes, we are experienced family law attorneys who would welcome the opportunity to guide you through the legal aspects of preparing for marriage. We recognize and acknowledge that this is a joyful time for you and your loved ones, but we believe strongly in entering the sacred union of marriage with your eyes wide open, which necessitates consideration of less glamorous, but still extremely important, issues like finances.To schedule a consultation, please call our law firm at (619) 577-4900. We are here for you.