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Couples intending to marry have the right to enter into written agreements that would alter or confirm their legal rights and obligations under California law. They are normally designed as a roadmap to address “what if” the parties end up in divorce. However, these agreements are not tantamount to an insurance policy and may be set aside as invalid if they are found to be substantively unfair at the time of enforcement. 

If you are contemplating entering into a premarital agreement, it is important to work with an experienced family law attorney. Zonder Family Law Group has drafted numerous successful and customized premarital (prenuptial) agreements. 

Our attorneys specialize in financially-complex marital estates and understand the legal issues that come with a new marriage. They also endeavor to make the process of drafting a premarital agreement as conflict and stress-free as possible.

Should you consider a premarital (prenuptial) agreement?

There are many reasons that clients come to our office seeking to draft a premarital agreement. For example:

  • One spouse stands to inherit a significant sum of money or interest in a parent’s business and wants to shield the asset from claims in a divorce 
  • One spouse already has an existing business with significant goodwill and value and wants to avoid having to do a buy-out to settle claims in the event of a divorce from his/her spouse

In some instances, premarital agreements for first marriages can be used as a roadmap to the couple’s finances. Care should be taken not to make a premarital agreement coercive to the financially weaker spouse, especially for young couples just starting off. 

We find that premarital agreements are more favorably viewed by many in a second or third marriage due to the following circumstances:

  • Independent businesses
  • Real estate interests
  • Children or grandchildren from a prior marriage

Advantages offered by a premarital agreement

  • Keeping your income as your separate property 

In California, without a premarital agreement, each spouse’s income during marriage is community property. That means half of your income belongs to your spouse and vice versa. A premarital agreement can provide that your income remains your separate property and your spouse’s income remains his or her separate property, which may be desirable if each of you is self-supporting.

  • Protect yourself from your spouse’s debts 

If your spouse is mired in debt, without a premarital agreement, creditors may be able to satisfy that debt using your community property and income. A premarital agreement can help avoid or minimize your liability.

  • Protect your children from a previous marriage 

If you have children from a previous marriage, a premarital agreement will help ensure that you are able to provide for them now and upon your death. With a premarital agreement, you can preserve your separate income so that you can gift it to your children or they can inherit it.

You can also protect the real estate you own by keeping it as your separate property. It will then be free to leave to your children when you die. If you wish, you can leave your new spouse a life estate on the property so that she or he can live in it or collect income from it. Then upon your spouse’s death, the property can pass to your children. This may help create separate buckets, that are yours, ours, and theirs (for your children).

  • Protect business and real property interests and specify property division

If you don’t have a premarital agreement, your property will be divided between you and your spouse in accordance with California law if you divorce. The result may not be what you want. In a premarital agreement, you can determine which property remains separate and whether you wish to create any community property or joint bank accounts. You can attach schedules to your premarital agreement itemizing any existing property and your proposed division.

  • Develop a roadmap for your finances during your marriage

Couples often use a premarital agreement as a road map for managing their finances. Some of the decisions that can be spelled out in the agreement include:

  • Whether to have separate or joint bank accounts
  • Whether you will file joint or separate tax returns
  • Who will be responsible for paying the mortgage on a home
  • Whether businesses started by either of you will be financed with separate or joint funds
  • How either spouse’s education will be financed
  • That each spouse’s separate property debts will be paid with that spouse’s separate funds
  • Whether spousal support (alimony) will be paid in event of divorce.  If so, the amount and duration of that support obligation can be agreed upon.

Disadvantages associated with premarital agreements

  • State law limitations 

State law places some limits on what can be accomplished in a premarital agreement. For example, a premarital agreement cannot: (a) promote divorce (b) restrict custody and visitation rights, or (c) limit child support.

  • Ineffective for non-financial matters 

Provisions for non-financial matters, such as custody and parenting plans or division of household responsibilities may be unenforceable.

  • Can be unfair depending on how they are drafted

Great care and sensitivity should be used when negotiating and drafting a premarital agreement, especially where the less financially fortunate spouse is being asked to waive significant rights that she/he would otherwise be entitled to under California law. 

Post-nuptial or Post-marital agreements

To be valid in California, a post-nuptial agreement or post-marital agreement must be:

  • In writing
  • Voluntarily signed by both parties
  • Accompanied by a full disclosure by both parties of all their assets, income, and debt.
  • In addition, both parties must have legal advice and an adequate opportunity to consider the terms of the agreement before signing.

Contact a knowledgeable prenuptial agreement attorney

This information is provided for general educational purposes only. It is not intended as specific legal advice for any particular case.

For more specific information, please contact Zonder Family Law Group for a consultation.  If you are in Santa Barbara or Ventura County, call(805) 777-7740.  If you are in Los Angeles County, call 818-877-0001. ZFLG is deeply committed to helping clients resolve the conflicts that arise in the course of the divorce.

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