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San Jose Divorce Attorney > Blog > General > How a prenuptial agreement alters the divorce process

How a prenuptial agreement alters the divorce process

You’ve likely heard that around 50 percent of marriages end in divorce. When people get married, they usually imagine it lasting forever, but there is a 50/50 chance of it ending in divorce.

Given the odds, it may be a prudent decision to create a prenuptial agreement–especially for high-asset couples, business owners or couples entering in to the marriage owning real estate.

What is included in a prenup?

Prenuptial agreements contain terms that couples will adhere to during the marriage and in the event of divorce. Some examples of terms in a prenup are as follows:

  • A full list of each person’s assets and debts
  • Which assets, if any, will remain a person’s separate property
  • Whether income earned during the marriage will be separate property or community property
  • How marital/community property will be divided
  • How each person’s debts will be handled during marriage and/or after divorce
  • Protections for family property, such as heirlooms, inheritances and family businesses
  • Limitations on spousal support in the event of a divorce

A prenup could include terms beyond the ones listed above, so long as the parties agree and the terms do not go against public policy.

How does a prenup change divorce?

Agreeing to terms of divorce ahead of time can make the process smoother and more efficient. Since couples have already listed their assets in the prenup, they may not have to spend as much time in the discovery stage. Overall, attorneys and the court may not have to do as much to settle the case, as the prenup should specify how all assets/debts are divided.

Because the couple negotiates the terms of a prenup while they are happy and communicating well, it generally leads to less stress and tension in the future.

The potential downside of a prenup

A prenuptial agreement isn’t for everyone. While creating a prenuptial agreement is generally a smart move for high-asset couples, there are specific requirements in order for the prenup to be valid. At a minimum, in order for a prenup to be valid it must be:

  • In writing
  • Truthful in terms of assets and debts listed and each parties’ income
  • Relatively fair to both parties

If spousal support provisions are included in the prenup, there are additional requirements in order for a Court to find that the agreement is valid.

If you are considering entering into a prenuptial agreement or are looking to contest a prenuptial agreement, seeking the guidance of a knowledgeable attorney could be helpful.

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