While you are wedding planning in California, one thing that should be on your checklist is a prenuptial/premarital agreement, commonly referred to as a “prenup.” A prenup is a written contract entered into by a couple engaged to be married, executed before legal marriage, and is effective upon marriage. It typically addresses property and debt each person already owns; their property rights after marriage; property disposition at separation, divorce, death, or another event; choice of law; and spousal support limitation or waiver.
There is a common misconception that prenups are only for the wealthy. However, every couple can benefit from having a prenup. If you don’t have a prenup, you essentially agree and submit to the state of California’s prenup upon separation through the CA Family Code and published case law. Without a prenup, you agree to the creation of community property, the obligation to cover all community debts, known or not, and the long-term spousal support framework. By having a prenup, you can avoid opting into an often-misunderstood set of laws without informed consent.
Some potential adverse outcomes of marrying without a prenup in California are: Community property laws prevail; automatic sharing of ownership of property acquired during the marriage that will be divided equally at the time of divorce; obligation to pay the other spouse’s debts that may have been incurred without your knowledge; equal management and control of community property; and an obligation to pay spousal support for a potentially indefinite period.
By having a prenup, you not only avoid the potential adverse outcomes, but some other benefits are also: informed consent of your rights with regard to property; you and your partner address and set clear expectations of sticky financial issues prior to marriage that often leads to divorce; saving time and legal fees in the event of divorce by streamlining a large part of the separation process; providing protection from third party creditors; the ability to preserve property for children from a prior marriage; address property rights in the event of death; and the ability to waive or limit spousal support.