You already know that in the last three decades, digital technology has revolutionized our lives. Computers and the internet have changed the way all of us communicate and work as well as the way we shop and do our banking.
As prenuptial agreement lawyers in California, we know that digital technology has also created a new kind of property, because in the 21st century, some of your property may be “digital” property. If you’ve created your own blog or a profitable website, if you’ve created videos on YouTube, or if you’ve invested in Bitcoin, you own digital assets.
Not even the family courts in California have been able to avoid the influence of digital technology, because the question inevitably arises: What happens to your digital assets if you get a divorce in this state?
EXACTLY HOW IS A “DIGITAL” ASSET DEFINED?
Will your digital assets be considered yours alone, or will they have to be “divided” with your spouse in a divorce proceeding? And is there any way to prevent the loss of your digital assets in a California divorce – even before you’ve taken the wedding vows?
Defining what a digital asset is – or can be – is tricky because technology continues to advance. Wikipedia says a digital asset is “digital data” that are or will be “stored on digital appliances” that “are, or will be in existence … to accommodate for the conception of new modalities ….”
WHAT IS THE BEST WAY TO PROTECT DIGITAL ASSETS IN A DIVORCE?
Of course, anyone can speculate about the future, but if you own digital assets right now, you probably know precisely what they are, and you probably want them protected. Your own digital assets may include photographs, audio, video, emails, and various document files and folders.
As you probably know, many digital assets are only accessible through a particular website or through some other single portal or access point. Additionally, digital assets are typically available only to a person who enters the correct password and username.
If you’re getting married – or if you’re thinking about it – what is the best way to protect your digital properties from anything that might happen in a divorce? The answer is a prenuptial agreement.
EXACTLY WHAT ARE PRENUPTIAL AGREEMENTS AND HOW DO THEY WORK?
A prenuptial or premarital agreement – a “prenup” – is a legal and financial document that prospective spouses create with help from one or more attorneys. It spells out how particular assets will be handled during the marriage as well as after the marriage if it ends in divorce.
A prenuptial agreement can address existing assets and may also spell out how assets that do not yet exist will be handled. Prenups usually deal with real estate holdings, bank accounts, and items of considerable value, but prenups may also deal with other items such as digital assets.
You’ll want your prenuptial agreement to specify – in the clearest possible language – precisely what assets belong personally to each spouse.
WHO CAN HELP YOU CREATE THE RIGHT PRENUPTIAL AGREEMENT?
Additionally, a prenuptial agreement can determine how certain assets are handled in a marriage. For instance, one partner may “control” an account that the other partner is only allowed to access.
In California, an experienced Walnut Creek family law attorney can help you and your prospective spouse draft the specific prenuptial agreement that’s right for you – an agreement that the courts will enforce and that protects the best interests of both partners in a divorce.
Creating a prenuptial agreement provides those about to be married with a genuine and serious opportunity to discuss their assets and properties going into a marriage, including any digital assets, and it gives them a chance to spell out in writing who owns what – and avoid surprises.
WHAT CAN A PRENUPTIAL AGREEMENT ACCOMPLISH?
Prenups answer in advance many of the questions that usually arise in a divorce. A prenuptial agreement can protect your personal property, protect you from debts incurred by your spouse, and even determine how much alimony will be paid should the partner’s divorce.
Precisely what a prenuptial agreement says will be up to you and your partner. Don’t accept anything less than the agreement that you really want.
If you own digital assets, create an inventory of those assets before you have a prenuptial agreement drafted so that nothing is overlooked. Include financial accounts, audio or video that you’ve created online, social media accounts, websites, email, and all of your other digital assets.
WHAT IF YOU’RE ALREADY MARRIED?
If you are already married, you can still put the same type of agreement in place. A “postnuptial” agreement is in virtually all respects just like a prenuptial agreement, except that the partners who sign it are already married.
However – and this cannot be stressed strongly enough – you must create a “prenup” or a “postnup” with the guidance of a skilled Walnut Creek divorce attorney who knows how to protect your interests and how to create an agreement that will hold up in court.
No two people are like you and your partner – your relationship is unique. You’ll want to avoid a sample, generic, preprinted, or “do-it-yourself” prenuptial or postnuptial agreement. Let an experienced California family lawyer draft an agreement that:
- is unique to you and your spouse
- meets the personal wishes and needs of both spouses
- will be enforced by the courts in this state
WHAT IS NEEDED TO CREATE AN ENFORCEABLE PRENUPTIAL AGREEMENT?
Under the provisions of this state’s Uniform Premarital Agreement Act, prenuptial agreements established after 2002 are enforceable by California courts only if the partners:
- had complete details about each other’s assets and properties before signing the agreement
- had a minimum of seven days from receiving the agreement to signing it
- were advised by different attorneys (unless one spouse has voluntarily and expressly waived that right)
If your digital assets are substantial, you should also make provisions for those assets in your will or trust. You will want to ensure that the right person inherits and has access to your digital assets when that time comes.
HOW CAN YOU LEARN MORE?
There are good reasons to take digital assets seriously. Some digital assets are already quite valuable. As for other digital assets, no one knows what the future holds. What’s certain is that, if you are about to marry, you should very seriously consider what assets you should protect.
Finally, it’s important to emphasize again that a prenuptial or postnuptial agreement is never one-sided. It must protect the best long-term interest of both spouses in the event of your divorce.
If you’re about to be married, if you are already married, if you own digital assets that are important to you, or to learn more about prenuptial and postnuptial agreements, you should discuss your circumstances promptly with a reliable California family lawyer. That is your right.