Divorce is among the most stressful periods in a person’s life. You may be dealing with a whirlwind of emotions, from anger and relief to heartbreak, all of which make it challenging to make rational decisions.
Add to all this the extra stress of a courtroom and high rates of attorneys; the animosity between you and your spouse is bound to grow. However, with the help of an online divorce service, you may have an amicable split.
But if there is a prenuptial agreement, you may have some confusion about the online divorce process. Let’s see how to navigate online divorce when you have a prenuptial agreement.
What Is a Prenuptial Agreement?
A prenuptial agreement is a legal contract between two adults who intend to marry.. The purpose of a prenuptial agreement is to set rules about property division and the obligation of each party towards the other when the marriage ends, either by divorce or death.
For example, in California, the Uniform Premarital Agreement Act (UPAA) has applied to prenuptial agreements in the state ever since 1986. The law states that written premarital agreements must be signed by both parties intending to get married and the contract automatically becomes effective once the couple marries.
Prenuptial agreements, or “prenups”, may cover present and future property rights and other marriage matters. The contract is generally enforceable unless a court deems it to be unfair or made under false pretenses.
Nevertheless, a prenup cannot impact a child’s right to child support in case of a divorce. The court puts the interest of children first and does not allow parents to agree to pay less than the state-mandated child support amount. Prenups also cannot take away a court’s power to control child custody and visitation after the end of a marriage. Reasons Spouses Get Prenuptial Agreements
Today more than ever, people tend to get prenuptial agreements before getting married, not only wealthy ones. People from all walks of life get a prenup to protect themselves in the event of a divorce.
While no one enters a marriage expecting it to end, it is better to be ready for every scenario.
The following are some of the most common reasons spouses get a prenuptial agreement:
- There is a big difference in the income levels between the spouses.
- The spouses have children from previous relationships whose inheritance rights they want to protect.
- One spouse is a business owner and wishes to protect the company from financial disruption. If unprotected, a divorce can force the liquidation of assets, including the company.
- A spouse avoids being responsible for paying their partner’s debts.
- Some people prefer to be practical and plan their hypothetical divorces with clear heads. This way, they avoid being under the effect of difficult feelings and stress during a divorce.
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What Do Prenuptial Agreements Contain?
Prenups cover topics that are usually decided during divorce proceedings. Some of the things a prenuptial agreement may contain are the following:
Separate and community property
Prenuptial agreements generally include provisions about division of assets and debts. This includes:
- A complete listing of each person’s separate assets, or assets they will retain exclusive ownership of.
- A listing of shared or community assets, which are assets that they jointly own..
- A listing of separate and shared debts (it is usually helpful to define how pre-marital debts will be handled).
- How property acquired during the marriage will be divided in the event of a divorce. Key items to include are how to handle real estate, retirement plans and stock options.
Spousal support (Alimony)
Spousal support is also often included in a prenuptial agreement. This can be done if both spouses earn similar amounts and feel support is not needed in the case of divorce. Or a spousal support provision can address if one spouse earns significantly more than the other and both want to limit or waive spousal support in the case of divorce.
In either case, it’s important to make the provision as fair as possible. A judge can invalidate this provision if it is seen to be unfair.
Inheritance rights
Spouses by default have a right to 50% of the estate in the event of their spouse’s death. Sometimes couples use a prenuptial agreement to allocate their estate in a different way. They can even waive inheritance rights altogether. An inheritance provision is especially common to ensure assets go to children from a previous marriage.
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Marital Responsibilities and Work
Prenups will often include how to handle financial and other issues during the marriage. For example, you might define how bank and investment accounts will be handled (all joint, all separate, or a mix), who will handle bill paying and tax returns, and even things like saving and spending strategies. Spending allowances are also sometimes defined, especially if there are uneven incomes.
Non-financial issues in a prenup might be expectations for having and taking care of children and how children from previous marriages will be handled. “Lifestyle” clauses are becoming more popular, such as defining religion that will be practiced, how many children they will have or treatment requirements for a spouse with an addiction problem. However, “Lifestyle” clauses are not always enforceable.
Work responsibilities can be defined in prenuptial agreements as well. You can agree both will work, or one will stay home with the children. Sometimes you can also define work responsibilities after a divorce; for example, both might be expected to continue working irrespective of spousal support.
Other Issues That Can Be Covered in a Prenup
Some couples include the following in their prenuptial agreement:
- Confidentiality agreement, especially if one spouse is well known
- Provisions around putting a spouse through school
- How business interests/ownership will be handled
- Financial penalty in the case of divorce if there has been infidelity (a “No Cheating Clause”)
When is a prenuptial agreement valid?
A prenuptial agreement is a legal contract. There are a number of criteria for it to be considered valid: The document must be in writing.
- There must be full disclosure from both spouses at the time of execution.
- The document must be signed by both spouses and notarized.
- The agreement must be fair and just for both people.
- The execution of the agreement must be before the marriage.
When is a prenuptial agreement found invalid?
The courts can find a prenuptial agreement invalid for the following reasons:
- One party did not make a full financial disclosure.
- Coercion or mental incapacitation at the time of signing.
- The agreement contains “unconscionable” (extremely unfair) terms.
Each state in the US has different laws for divorce and prenuptial agreements. But most states have similar reasons for voiding an existing prenup.
For example, in the state of California, a prenuptial agreement is unenforceable for the following reasons:
- Unconscionability
- Lack of Independent Legal Counsel
- Fraud or Misrepresentation
- Change in Circumstances
- Duress or Undue Influence
- Lack of Full Disclosure
- Lack of Fairness and Reasonableness
- Modification or Revocation
- Public Policy
- Lack of Time for Review
- Ambiguity
- Invalid Provisions
- Non-compliance with Formalities
- Waiver of Legal Rights
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Can You Contest a Prenuptial Agreement?
If a spouse feels they signed the prenuptial agreement under duress or think its terms are unfair, they can contest it during the divorce. After contesting the prenup, the courts will review it, and if they find it to have questionable terms, they can deem the prenup unenforceable.
When a prenuptial agreement is contested and deemed unenforceable, the couple must split assets and agree on all divorce terms from scratch. If they cannot agree, the court will decide how to deal with the property and alimony.
Prenuptial Agreements and Online Divorce
Online divorce can be an ideal solution when there is a prenuptial agreement both spouses agree on. It can even be a good option when one or both spouses want to make changes to the provisions in the prenuptial agreement. Let’s review both cases.
Online divorce when both spouses accept the prenup
When you both agree that the prenuptial agreement will be followed as written, online divorce provides an easy and cost effective way to go through the divorce process. Instead of spending tens of thousands on San Francisco divorce lawyer and mediator fees, you can use an online divorce site to document what you’ve already agreed to.
Most good online divorce sites will also help you identify if there is anything that needs to be in the divorce settlement that was not included in your prenuptial agreement. For example, you might not have included in the prenup how to handle life insurance policies or frequent flyer miles. These items are both usually included in a divorce agreement.
Once you’ve documented all the items in your divorce settlement, an online divorce site will allow you to print your documents and file them with your local court. There are usually multiple steps to this so be sure to follow instructions closely. The paperwork process is usually more complex than people realize. A few online divorce sites have a professional prepare the documents for you and file them electronically for a very reasonable fee.
Online divorce when one or both spouses contest the prenup
As previously mentioned, sometimes one side will contest a prenuptial agreement. This usually leads to a protracted, expensive legal battle.
What people often don’t realize is that in situations like these, lawyers are not always the best way to protect your interests. Lawyer fees are so high that both spouses usually walk away with less, and the agreement you finally reach is not necessarily better than if you had worked it out yourself.
Online divorce services that include digital mediation tools and/or Zoom-based mediation can be very helpful in this situation. These sites don’t just do the paperwork; they also help spouses work out disagreements. This will usually spare you months of pain and thousands in lawyer fees.
As long as both parties are willing to consider changes and work out a compromise agreement, an online site with mediation is probably a good option for you. For couples divorcing in California, BlissDivorce has a 100% success rate in resolving all disagreements in a divorce.
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Conclusion
Learning how to navigate online divorce when you have a prenuptial agreement is beneficial. Especially if you want to protect yourself with a prenuptial agreement, you and your spouse may agree on your divorce terms easier and with less tension. But even if one or both would like to make changes to the prenup during divorce proceedings, the right online divorce service can help you do this in less time, for less money and with less conflict.
