Do I need a prenup (“prenuptial agreement” or “premarital agreement”) in California?
It really depends. If you earn or anticipate earning way more money than your partner, then it would likely benefit you to have one. If you are a business owner and you earn or anticipate earning money from the business, then it would likely benefit you to have one. To be frank, if you are the financially dominant partner, you likely are better off having a premarital agreement.
Many people are misinformed about community property law in California. Basically, any income earned or assets acquired during marriage are considered community property or quasi-community property and are subject to a 50/50 division. Any assets owned before marriage are generally separate property. Any gifts or inheritances received during the marriage are generally separate property.
Believe me, the community property issue is not simple. As an example, if you own a house free and clear going into the marriage, the house is your separate property. If you own a house subject to a mortgage going into the marriage, the equity paid and appreciation prior to the marriage are yours, mortgage payments and appreciation after marriage are community property. Lets say you own a business before marriage and you continue to work at the business during marriage. The fruits of your labor after marriage are likely community property. Even in the case of the house you own free and clear, you could be ordered to pay spousal support based on your wealth from the separate property asset.
One point that I can provide clarity on for you is that nothing in a premarital agreement pertaining to child support or child custody will be enforced by a court. If you want an enforceable premarital agreement on other issues, DO NOT attempt to get one through a website. I recall a case I had where the other party and my client found an agreement on a website, which they paid for, but when I looked at the document, it was comically unenforceable. Big win for my client!
Most contracts or agreements in California require very little to be enforceable. For example, if I tell a gardener that I will pay him $200 to mow my lawn and do some landscaping, and he says that he agrees and will do it on a certain date, that is a legally enforceable agreement. Premarital agreements are nowhere near this simple. Even if you read and understand California’s Uniform Premarital Agreement Act (click here if you want to read it: Uniform Premarital Agreement Act ) there is a body of case law that you would need to read and understand.
If you contact me and offer to pay me to write you a premarital agreement, I will be hesitant to do it. Don’t get me wrong, I am reasonably confident I can write you an “ironclad” premarital agreement, but most family law attorneys, myself included, are hesitant to deal with them because if a court finds a premarital agreement unenforceable, it is a malpractice trap for the lawyer who drafted it. You can contact me if you want to chat about premarital agreements, but don't be surprised if I say I am not interested in drafting one for you.
As always, this post is not legal advice, but I hope you found it entertaining and educational.