What you need to know about California Prenuptial Agreements (or Prenups)

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What is a California Prenuptial Agreement, also known as a “Prenup”?

A Prenuptial Agreement (also called a Prenup) is a legal contract between two parties signed before they enter into a legal marriage. A Prenuptial Agreement can provide you and your new spouse clarity regarding what will happen with your property and finances if the two of you decide to divorce in the future.

Why should you have a prenuptial agreement?

Many couples anticipating their “big day” wonder if a prenuptial agreement is right for them. More often than not, I find that people believe a prenuptial agreement isn’t for them because they think it’s a premonition of divorce and/or they don’t want to kill the romance of their upcoming nuptials. Many couples don’t take into consideration, that aside from the commitment and love associated with marriage, marriage is actually a legal contract governed by the law! Prenuptial agreements can be looked at from a different lens in that it provides a framework for couples to be honest and communicative about expectations when they are entering into a marriage.

When should you draft a prenuptial agreement?

“Prenups” are drafted before a couple enters into marriage. A prenuptial agreement typically identifies each spouses’ assets and debts before marriage and dictates how they will be divided if they divorce. There’s a false assumption that prenuptial agreements are only for people who are extremely wealthy. In reality, prenuptial agreements are for all types of couples who simply want to prevent future contentious behavior and excessive legal fees in the unfortunate case of divorce.

What happens if you don’t have a prenuptial agreement?

In California, if a couple chooses to marry without drafting a prenuptial marriage, the assets and debts belonging to the spouses in the marriage are subject to California community property laws. This means that virtually all assets and debts accrued after marriage would be split evenly upon divorce. Typically, couples will also decide whether they wish to waive spousal support in their prenuptial agreements. But, any reference to child custody or child support are not legally enforceable and should not be included in a California prenuptial agreement.

How do you get started?

Drafting a valid prenuptial agreement in California requires drafting the prenuptial agreement according to the laws of California. There are many different components to make sure your prenuptial agreement is valid and enforceable in California – the most important being that the parties need to understand what they are signing!

What happens when you don’t have a Prenup?

Giant’s slugger Barry Bonds spent several years litigating the validity of his prenuptial agreement in California because his ex-wife did not have a separate attorney represent her when their prenuptial agreement was drafted and signed. His case went all the way to the California Supreme Court. And while the Supreme Court found his prenuptial agreement to be valid, his case was an important lesson for other couples on how to ensure your prenuptial agreement is legally enforceable.