A prenuptial agreement is a written agreement entered into by a couple before they marry or register as domestic partners. The agreement defines the economic aspects of their relationship using private choice, rather than the rules of California state law.

Many state law rules that apply automatically when a couple marries – such as the rule that earnings during marriage are community property – can be altered by a prenuptial agreement.

• Ownership of earnings and benefits acquired during marriage
• Ownership and use of the marital home
• Ownership and management of a business
• Ownership and management of investments
• Payment responsibility for debts and taxes
• Gift giving
• Planning for property rights after the death of one spouse
• Spousal support upon divorce
• Laws that apply to spouses property and support rights regardless of where they live

Matters concerning children – both child support and child custody – cannot be the subject of prenuptial agreements.

Prenuptial agreements can also contain provisions that determine the ownership of property that is purchased with loans, and address the obligation to pay the loan back. Under California law, most loans during marriage are a community obligation, and the proceeds are a community asset. But, for example, if a spouse owns a business prior to marrying, that spouse may need the flexibility to borrow funds personally, or through the business, without creating a community property interest in the loan proceeds. The same rules would apply to real property secured loans made during marriage regardless of the ownership of the underlying real property. By using a prenuptial agreement, spouses can avoid these community property claims.

By clarifying ownership of property and support rights, prenuptial agreements also avoid future disputes in the event of divorce, and can clarify ownership in estates at time of a spouse’s death.
These are just some examples of what can be accomplished with the financial planning that constitutes a prenuptial agreement.

California is very strict in its application of prenuptial agreement terms. Just because both parties sign the agreement, does not mean it will be valid and enforceable in the eyes of the court.

California law sets forth specific requirements that should be followed to assure a prenuptial agreement is valid and enforceable upon divorce or death. These requirements include requirements for attorney advice, financial disclosure, waiting periods before signing, and requirements for translating agreements for foreign speaking parties.

It is important to have an experienced family law attorney draft your prenuptial agreement to ensure that it is legally sound and enforceable.

If a “prenup” is not signed before marriage, a couple can enter into a postnuptial agreement (post-marital agreement). In postnuptial agreements, it is particularly important that each spouse disclose the full nature and extent of his/her assets and debts.

Married individuals are in a “confidential” relationship under the law, and cannot take financial advantage of the other spouse. For this reason, it is important that both spouses understand the full nature and extent of any property and support rights and obligations they are changing through their postnuptial agreement, including whatever property they have acquired, both from before their marriage, and since.

Unmarried partners can enter into agreements concerning their property and support rights, just as married couples can. However, the law pertaining to unmarried partners is different from the law pertaining to married partners. As such, the terms of agreements involving unmarried partners differ from the terms commonly found in prenuptial agreements. Agreements for unmarried partners are often referred to as “Cohabitation Agreements.”