PRENUPTIAL AGREEMENTS: They can be good for everyone.

The dress, the location, the florist, what else is there to do before the big day? If you are like many recent newlyweds, it’s the Prenuptial Agreement. With today’s couples delaying marriage much longer and well into their careers, Prenuptial Agreements are on the rise. Most think that they protect only the wealthier of the spouses who are marrying, but they can provide a great benefit to both of the marrying parties.

 

Take the issue of Spousal Support. Until the case of IRMO Pendleton & Fireman, the consensus was that Spousal Support provisions in Premarital Agreements were unenforceable. The Pendleton & Fireman case changed that. But simply allowing a Spousal Support provision in a Premarital Agreement does not make that provision enforceable. In order to be enforceable, the agreement must not be unconscionable at the time of enforcement (when the parties are divorcing). Often times, less experienced attorneys will draft Premarital Agreements which provide that in the event of a divorce, neither party will ever be allowed to receive spousal support from the other. These are the specific types of provisions which the court often finds unenforceable as being unconscionable. One can easily imagine why such an agreement would be unenforceable. Often times, one spouse will stay home and raise the children while the other continues to pursue a career. After many years or decades, the parties separate with one party having a lucrative career and the stay home parent being far less employable. To deny the stay home parent spousal support in this scenario could easily lead to a finding that the agreement is unconscionable.

 

To discuss how a Prenuptial Agreement with Spousal Support provisions can benefit both parties and more importantly, survive judicial scrutiny, please contact one of the attorneys at the Daigneault Law Group or visit us on the web at www.CalDisso.com.

 

 

Marriage of Pendleton & Fireman (2000) 24 C4th 39, 53–54, 99 CR2d 278, 288–289

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