“What? You Want Me to Sign a Prenup?”
By Frank Corral, Esq., LL.M.

A prenuptial agreement may seem like a romance killer, but in reality, it offers a way to protect you assets and define your expectations throughout the marriage as well as in the event of divorce or death.

Since this is our bridal issue, I saw it fit to address a legal issue that for many is taboo—premarital agreements, or more commonly known as prenuptial agreements or “prenups.” A prenup is a legal contract that outlines the specifics of your marital agreement and clarifies what will happen to a couple’s assets, incomes and properties in the event of divorce or death. Conditions of a prenup may also cover personal rights and obligations to be met during the marriage itself.

Many people avoid even mentioning the possibility of a prenup to their future spouse because of the stigma associated with this type of legal agreement. But what few people realize is that a prenup can actually help open the lines of communication from the get-go. It’s also a great way to learn about each other’s future hopes and expectations, not to mention financial situation.

Let me give you a general summary of community property law, the body of law that encompasses property rights surrounding marriage. California recognizes three types of property, “separate property,” “community property,” and “quasi-community property.”

Separate property is property belonging only to one spouse. It includes property owned before marriage, property received by gift or inheritance, and in most cases profits yielded by existing separate property.
Community property is property owned jointly by spouses, generally involving all assets acquired during marriage, in most cases without regard to which spouse’s name is on the paycheck. Quasi-community property is a hybrid of both separate and community property and you need not worry about it unless you have, or plan to live outside California while married. If that’s the case, consult your attorney.

A prenup can be amended at any time spouses mutually agree. Changing character of property is fairly easy; spouses need only specifically agree, and because of the unlimited spousal exemption, there are no transfer taxes when spouses transfer ownership to one another.

Whether to bring up the topic or not before tying the knot is obviously a very personal decision. Typically, a premarital agreement is only useful upon divorce. That means spouses-to-be must undermine their commitment to each other by discussing the contemplation of divorce before they are even married. For many people this is a deal breaker. However painful or discomforting the subject may be, you have to stay realistic of the fact that we live in a state with an approximate 65 percent divorce rate.

So, practically speaking, a premarital agreement is only smart future planning. In my opinion, it’s always better to have one and not need it than to need it and not have one.

This article should not be relied on as legal advice. Consult your attorney with any legal questions you may have.