Getting Married? Discuss a prenuptial agreement to protect both of you.

Wedding season is here! With many decisions for engaged couples to make from catering to flowers to choosing a bridal party, the last thing on your mind in most cases is having your soon-to-be spouse sign a document that addresses your finances and property in your unforeseen bright future. The superstition that it predicts the demise of your marriage before it’s even begun may also weigh on your mind. However, the reality is that the divorce rate in California is almost three times the national average, so it’s truly something you should consider. Although it may be a difficult topic to discuss with your future spouse, a prenuptial agreement can be an invaluable tool for both of you.

What is a Prenuptial Agreement?

A prenuptial agreement (or “prenup”) is a legally binding contract signed before marriage to allow both parties to define how finances, property, and support will be handled in the marriage ends. It is typically prepared by an attorney representing one spouse and then reviewed by another attorney representing the other spouse (and can be required depending on the terms of the agreement). Both parties must sign in the presence of a notary to ensure enforceability.

What Can a Prenuptial Agreement Cover?

Under California’s Family Code § 1612, parties to a pre-marital agreement may contract for all of the following:

• Ownership and management of property

• What happens to assets in the event of separation, divorce, or death

• Rights to business interests and income

• Spousal support (subject to additional legal requirements)

• Obligations concerning debts

• Life insurance policies and estate plans

• Any other matter not against public policy

Who Should Consider a Prenuptial Agreement?

While a prenuptial agreement isn’t necessary for every couple, here are five situations where it can be particularly important:

1. One or both of you owns a business: The day before you get married, any business interest you have is yours and yours alone. This is called your separate property. The day you get married, the business itself remains your separate property, however, any profits obtained from the business become community property. Upon divorce, all community property is split jointly if you separate from your spouse. Without a clear agreement, your spouse may be entitled to a share of the business’s growth, assets, or income—even if they weren’t directly involved. This could lead to the sale of the business or loss of control.

2. This is not your first marriage or you have a pre-existing estate plan: Prenuptial agreements are not only used when you get a divorce. They are also created to ensure that you or your future spouse can distribute your assets to any children from a previous marriage, former spouses, or anyone else you wish to provide for. If your soon-to-be spouse enters the marriage with the knowledge they will not be entitled to that property, they cannot later claim you mistakenly left them out of your will. Additionally, suppose you were to separate at some point after the marriage. In that case, if there is no agreement regarding how to treat your property owned before marriage, especially real estate, your spouse may acquire a community interest in that property you owned before marriage and promised to others upon your death, potentially forcing you to buy out their equity in your separate property or even having to sell the property.

3. There is a significant difference in assets: Either you or your spouse may have significant wealth, from family, earnings before the marriage, or investments obtained for your retirement. Once you’re married, any earnings become Community Property, of which your spouse is entitled to half. Additionally, any funds you commingle with your existing funds may become community property. There are ways to trace items back to the funds they originated from to determine what portion is community property and what portion is separate property, but this becomes increasingly difficult the longer you are married and the more times you purchase property. For instance, a wealthier spouse purchases a brand new BMW with funds from his separate property bank account for $80,000 just after the marriage. A few years later, the BMW is traded in and a Tesla is partially-financed and paid for each month from the joint bank account. Then, a few years later, the Tesla is traded in and a Mercedes is purchased. Over time, that $80,000 the wealthier spouse initially contributed becomes so diluted with the community funds, there’s no way to track where the funds came from when it’s time to decide who receives the Mercedes when a divorce is filed.

4. There is a significant difference in debt: An ex-spouse is not the only person trying to obtain marital assets. A prenuptial agreement can also protect certain property from debt collectors and designate responsibilities for pre-marital debt. When community earnings are used to pay one spouse’s outstanding debts, upon divorce, the other spouse can obtain reimbursement for one-half of everything paid on those separate debts during the marriage, including payment of student loans, mortgages, and vehicle payments. A prenuptial agreement can designate who pays what obligations and what funds may be used to do so.

5. One of you plans to step away from work to raise children: Spousal support may also be set or waived in a prenuptial agreement, although this is a tricky subject that requires further explanation. A prenuptial agreement can guarantee a spouse will be financially supported for a certain period if he or she takes time off to raise the children of the marriage, or for any other reason. A clause can be used to protect a financially weaker spouse or a spouse who opts out of their career trajectory to raise the family.
   

It’s Not Just About Divorce- It’s About Clarity

Prenups are often misunderstood as only being useful in divorce. In reality, they’re a proactive way to set financial expectations and avoid confusion throughout the marriage. They can protect both parties, reduce financial arguments, and support long-term planning.

Think of it less as “planning for failure” and more as “agreeing on the rules of the road.”

Although it may be uncomfortable to discuss these matters while debating over the age-old question, “Do we get a band or a DJ?”, your financial future as a couple is much more important to resolve. If you or someone you know is planning a wedding and any of the above applies, call an attorney for a consultation in plenty of time before saying “I do.” Having a prenuptial agreement can provide peace of mind, knowing that both parties have agreed on important financial matters before entering the marriage. Overall, prenuptial agreements can help couples avoid financial disputes and ensure a smoother process in the event of a divorce.

Take the Next Step - Before You Say “I Do”

If you’re getting married and any of the above scenarios apply, it’s worth speaking with a family law attorney. The earlier you start the conversation, the more time you’ll have to consider your options and reach an agreement.

At Inglis Family Law Firm, we help couples create fair, legally sound prenuptial agreements with professionalism and discretion. With over 15 years of experience in California family law, we can help you understand what’s enforceable, what to avoid, and how the law would treat your situation without an agreement in place.

Let’s make sure you’re protected and informed—so you can focus on building a future together.

Call us at (661) 200-3845 to schedule a consultation.