What is a Prenuptial Agreement?

Prenuptial agreements in California often have a bad reputation and are frequently misunderstood. They can be important tools to use to protect yourself, your future spouse, and each of your assets going into a marriage. What's more: they offer transparency, and that's a good place to start a marriage.

A prenuptial agreement is a contract entered into between two soon-to-be spouses before marriage which lays out the specifics of what will happen to the property they own should the marriage fail, and can address multiple other issues, such as characterization of property, inheritance, and other issues.

Prenuptial agreements in most states can be used to address many different issues, including: 

  • What property should be considered marital and what should be considered separate? Instead of having a judge decide this matter pursuant to the laws of your state, you can decide beforehand. 
  • Protections for certain property. For example, if the engagement ring is a family heirloom on the spouse's side, the parties may agree that in the event of divorce, the ring goes back to the husband.
  • You may agree that should one or both spouses want a divorce, the parties are required to go through mediation or arbitration.

Prenuptial agreements in most states cannot be used to address certain issues, including:

  • Custody and issues of child support are not allowed to be addressed in prenuptial agreements. The reason for this is that “child support” is a claim of the child, rather than the parent, and the court will determine what is in the child's best interest, not the parents.
  • Courts generally do not favor provisions that address personal rather than financial issues. For example, a prenuptial agreement should not contain a provision stating where the parties will spend their Christmases.
  • A prenuptial agreement should not be used to address anything that is illegal. For example, if the family earns money through the sale of illegal drugs, who gets that business in case of divorce is not allowed to be addressed.

To be sure your prenuptial agreement is enforceable, it is best to make the terms as fair as possible to both parties, and to follow the formalities required by your state.

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