Ask Debra—In this series, Family Law Specialist Debra Schoenberg answers your most pressing divorce-related questions.
Today, 5 FAQ about Prenuptial Agreements in California
When you’re in love and excitedly preparing to get married, the idea of a prenuptial agreement (“prenup”) might seem like a downer – unromantic, suspicious, perhaps even bad luck. You might worry that it’s akin to admitting you’re not sure the relationship will last, or that you don’t take your commitment seriously.
The truth is, there’s a lot of misunderstanding around the subject of prenups. At SFLG, we believe that while not every couple needs or chooses one, every couple should know they have the option and understand what these pragmatic documents are really all about.
- What is a prenuptial agreement?
A prenuptial agreement, or “prenup,” is a legal contract signed by both spouses-to-be that outlines how assets and debts will be divided in the event of a divorce. It’s designed to protect each partner’s financial interests before entering into marriage, and to simplify the dissolution process if the marriage ends. (A postnuptial agreement is essentially the same, but signed after you’re already married, often due to a major change in financial circumstances.)
A skilled, strategic, and sensitive attorney can help you tailor an agreement to reflect your specific goals and values, providing clarity and security without indicating a lack of faith in your relationship.
- Do I need a prenuptial agreement?
As with many questions in the field of law, the answer is, “It depends.”
Legally speaking, you’re not required to have a prenup.
But here’s what I can tell you: despite a persistent myth that prenups are only for the rich and famous, more and more “average” couples are choosing them nowadays. And, despite another common misperception, deciding to sign a prenup does not mean that you distrust your future spouse, or that your marriage is doomed.
As a California family law specialist, with more than four decades of experience helping couples navigate divorce – often complex, high-asset, high-conflict splits – I strongly believe that a prenup is a wise and practical move. It’s simply a tool, a roadmap that helps streamline the dissolution process if the marriage doesn’t last, making it much less complicated and contentious.
Although it can be a complex topic to broach initially, I’ve found that when a couple approaches the prenup process with honesty, transparency, and care, drafting the agreement can actually support a stronger union. It can help spouses-to-be clarify potential issues and sticking points, align their values and priorities, and facilitate constructive conversations about sensitive financial matters.
Deciding whether or not to sign a prenup is a very personal and delicate decision, with factors unique to each couple. The goal is to balance the creation of a healthy, happy, lasting partnership with sensible protections.
- Why are prenups important in California?
It’s important to understand that California is a community property state. Under the law, all marital assets – meaning anything earned or acquired during the marriage – are equally owned and must be split 50/50 in divorce. There are a few exceptions for certain types of gifts, inheritances, and assets owned separately before marriage, but even those can become “commingled” and more complicated to disentangle.
Although community property law is intended to be straightforward and fair, in practice, it can still be very thorny and put certain types of assets at risk.
Our Bay Area and Silicon Valley clients often face special financial circumstances during divorce. Affluent couples, entrepreneurs, tech executives, and inventors may have multiple income streams, complex business interests and stock portfolios, intellectual property, digital assets, and valuable local real estate.
A well-crafted prenup can offer clarity and protection by legally designating some assets as separate property. It can also safeguard you against a spouse’s liabilities.
- What should we include in our prenup?
It’s important to understand which terms can and cannot be included in your prenuptial agreement.
To be durable and enforceable, your prenuptial agreement must meet established standards of fairness, accuracy, and integrity and comply with the Uniform Premarital Agreement Act under the California Family Code.
A typical California prenup will:
- Establish separate vs. shared property.
- Outline the specific division of marital assets, earnings, and debts in the event of a divorce
- Set terms for spousal support
Your prenup cannot include child custody or child support provisions. It is also not a tool for micromanaging your partner or relationship. Your agreement can’t include clauses that dictate lifestyle details such as career choice, appearance, family size, or sexual preferences. It can’t include anything illegal or “unconscionable.”
- How do we draft a prenuptial agreement?
Timing is key! This isn’t something you want to rush. Start early and leave time for calm, honest, open dialogue; several months before your wedding is best. It’s not wise to draft a prenup on your own. To draft a valid contract, each partner should have their own qualified attorney. Each party must voluntarily agree to the contract without any form of pressure or coercion, and both must be completely transparent in their disclosure of assets. The agreement must be in writing (a verbal agreement is not valid), signed by both spouses, and notarized. Each party must have a 7-day review window before signing.
If you have questions about whether a prenup is right for you, our experienced and caring family law attorneys are here to help.
