310.956.4600 [email protected]

There are a few misconceptions about prenuptial agreements that tend to frighten off couples about to get married.  To help clear things up, here are the main things that you need to know if you’re looking to consider a prenuptial agreement:

  1. There is no standard prenuptial agreement.  Every agreement is different and selective to the individuals that are looking for this type of agreement.  You and your significant other can make your own agreement, with your own guidelines.
  2. A prenuptial agreement is a bit like an insurance policy.  Even if you plan, or are, married for a very long time, it’s still nice to have.  It’s also nice to have this “insurance policy” incase the marriage, sadly, ends quicker than expected.
  3. In California, it is incredibly important to make sure you and your future spouse look overall financial issues or disclosures that pertain to the prenuptial agreement.  Things like spousal support or property obtained before and after marriage should be discussed before included (or not included) in the prenuptial agreement.

Premarital Agreement Basics in California

  • Things like child support or child custody should not be considered during a prenuptial agreement. If it is, it would be the opposite of what the California public policy states.  Therefore, it should not be provided at all during any premarital agreement meetings.
  • Because it is a communal property state, California states that spouses will have equal ownership of property bought or obtained during their marriage. Unless the parties involved agree differently, all money or property obtained during the marriage will be considered equally owned by the state of California.  Earnings and property owned prior to marriage is considered to be owned individually and considered separate   However, if, during a marriage, a spouse contributes an abundance of time and effort into something that is considered a separate property (like a business), then this will become a communal property — unless the spouses claim otherwise.
  • If there is no will, premarital agreement, or trust: If a spouse dies while married, the widow then owns one half all all the communal property and can then inherit a legal amount of the separate property.
  • If divorce occurs without a prenuptial agreement, in the state of California, communal properties will be split in half, or evenly, between the spouses. Without a premarital agreement, any separate property will be returned to the original owner or spouse.  By agreeing to a prenuptial agreement, you can contract freely concerning communal and separate property.
  • If you divorce in another state or country other than California, that state may not honor your premarital agreement (if you have one).
  • In California, after divorcing, there is a chance that either spouse may be declared to owe spousal support to their former partner. This could be based off of marital standard of living and many other subjective circumstances.  Depending on how long you were married (either less or more than ten years), you could be paying spousal support for only a few years — or for the rest of your life.  Under a prenuptial agreement, it is possible to have a waiver for spousal support.

Frequently Asked Questions

Q:  Are divorce proceedings the same in each state?  Are prenuptial agreements viable in each state?

A:  If you are not living in California, you should find the legal factors under the jurisdiction where you currently reside, or where you are filing for divorce.  If you are living in California currently and would like to have a prenuptial agreement, but are possibly worried about state limitations, you should discuss having a prenuptial agreement that evades “equitable decision” laws.

Q:  Should I make special provisions for my property?

A:  Prior to marriage, some couples like to make special provisions for some of their properties or businesses that were owned before the marriage.  There are a variety of different reasons or ways why people decide to make special provision for their own property, and you may want to talk to an attorney to learn more as you make a prenuptial agreement.

Q:  Should I make special provisions for both me and my spouse in case one of us dies?

A:  Protections like life insurance, trusts or wills can be made for spouses that would like to be prepared in case of the event of death to them or their spouse.  Many spouses, because of this reason, like to make an added estate plan to their premarital agreement.

Q:  Why should I add, or not add, spousal support to my prenuptial agreement?

A:  It can be very hard to predict the future, which is why many spouses like to add or not add spousal support to their premarital agreement.  If divorce occurs between you and your spouse, there is an option to attempt to change or eliminate your ability to receive spousal support if you no longer want to.

Q:  Should earnings made be considered separate property or communal property?

A:  This is asked more often than not.  You and your spouse should talk this over:  do you want compile your earnings together and form a communal property during your marriage?  Would you like to have certain forms of earnings considered separate property?  Every couple is different.  You should talk with your spouse to find out what would fit best for your own relationship, and your own property.

Farbod Majd Esq.
Divorce Attorney w/ offices in Beverly Hills/Los Angeles
Services in English, Turkish, and Farsi/Persian (Iranian/American Lawyer)

8383 Wilshire Blvd Suite 646, Beverly Hills, CA 90211

310.956.4600 | Fax: 310.878.8989 | [email protected]