PREMARITAL AGREEMENT

“You can save a few thousands of dollars now and avoid hiring an attorney to prepare and negotiate your Premarital Agreement, BUT you can lose a fortune later. Spend money wisely.”
Maria Rogova, Esq.

What is a Premarital Agreement?

The Premarital Agreement also known as a Prenuptial Agreement (Prenup) means an agreement between prospective spouses in contemplation of marriage and to be effective upon marriage.
The Premarital Agreement or Prenuptial Agreement (Prenup) describes what will happen with spouses’ assets and debts should the marriage end in divorce or legal separation. To be valid the Premarital Agreement must meet specific laws and regulations.

The Premarital Agreement must be in writing and signed by both parties.

Prospective spouses can contract with respect to the following:

1. The rights and obligations of each of the prospective spouses in any of the property of either or both.
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
4. The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
5. The ownership rights in and disposition of the death benefit from a life insurance policy.
6. The choice of law governing the construction of the agreement.
7. Any other matter not in violation of public policy or a statute imposing a criminal penalty.

Limitations:

1. The right of a child to support may not be adversely affected by the Premarital Agreement.
2. Any provision in the Premarital Agreement regarding spousal support, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the Premarital Agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement.

A Premarital Agreement or Prenuptial Agreement (Prenup) is not enforceable if the party against whom enforcement is sought proves either of the following:

1. That party did not execute the agreement voluntarily:

a. under duress.
b. fraud.
c. undue influence.
d. less than 7 days passed between the time that party was first presented with the final premarital agreement and the time the agreement was signed, regardless of whether the party is represented by an attorney.
e. Etc.

2. The agreement was unconscionable when it was executed.

Main points to follow:

• Hire an attorney.
• If you are an initiator of having a premarital agreement with your prospective spouse.
  o Make sure your prospective spouse has an attorney. If he/she cannot afford an attorney, help him/her financially to hire an attorney
• Use the following forms to formally disclose your property and financial obligations to your prospective spouse:
  o Income and Expense Declaration (form FL-150), and
  o Schedule of Assets and Debts (forms FL-142).
• Make sure your prospective spouse formally discloses her/his property and financial obligations to you.
• If you want your prospective spouse to waive (or limit) his/her right to ask for spousal support than she/he must be represented by an attorney.
• If English is not your/your prospective spouse’s native language, make sure your/your prospective spouse’s attorney speaks your/your prospective spouse’s native language.
• Your attorneys will take care of other nuances and formalities of the premarital agreement.

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Please contact me at 619-737-3919 to schedule a 30-minute initial complimentary consultation to discuss your personal situation.

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