The wedding date is set, the venue is booked, and the invitations have been ordered. You are knee deep in wedding planning when a friend asks, “are you getting a prenup?” Like most couples in California, you probably haven’t considered a premarital agreement as part of the wedding plans.
It can be a thorny subject for many. Yet, more couples are discussing this legal safeguard as relationships and finances grow more complicated. But is a prenup really worth the hassle?
What Is a Prenup?
Whether you know it or not, you actually already have a premarital agreement: it is called the California Family Code. The Family Code governs during marriage, at marital dissolution or legal separation, and potentially at death. While no couple wants to plan for divorce or separation, the California Legislator has done that for you.
A premarital agreement (or “prenup”) is a written contract that allows couples to make their own rules and opt out of the default community property rules in California, in whole or in part. It defines how financial matters, including assets, debts, and property, will get handled if the marriage ends in divorce.
While planning for marriage, the focus is often on the romance and the celebration of new beginnings. It may seem counter-intuitive to propose a conversation about how the marriage will work, but marriage is more than a romantic union—it is an economic union, and understanding the rules of California is key to understanding who owns what during marriage.
What Does it Take to Get a Prenup Drawn Up?
Getting a prenup can certainly feel like a hassle when you’d rather be picking out wedding cakes and dance playlists. Here’s a closer look at the steps involved:
- Full Financial Disclosure – Couples must disclose all assets, income, debts, and other financial details. Full transparency is critical to ensure the prenup holds up in court.
- Hire Attorneys – Both parties should have separate legal representation to ensure that the agreement is fair and protects everyone’s interests.
- Draft the Agreement – A legal professional will formalize the prenup based on your goals and financial situation, outlining provisions for asset division, financial responsibilities, or protections in case of divorce.
- Allocate Time – Finalizing a prenup takes time and should start well in advance of the wedding. Rushed agreements are less likely to hold up legally.
Creating a prenup requires open communication, honesty, and collaboration. It can feel tedious and unexciting, but with good communication and professional help, the process can be fairly painless.
Why a Prenup Is Worth It
Under Family Code Section 760, except as otherwise provided by statute, all property, real or personal, acquired during marriage while living in the State of California is community property. Many couples are surprised to learn that their income from employment becomes community property after the date of marriage, as do their contributions to their 401(k) and even potential growth in a business owned prior to marriage.
Engaged couples should ask themselves: do I understand the rules of California as it relates to married couples? What does a prenup mean for me? There are often negative perceptions associated with prenups, most of which are inaccurate or exaggerated. Not everyone who desires a premarital agreement has a selfish or hidden motivation. Rather, they might be seeking to ensure fairness in marriage, financial transparency, and alignment of expectations.
When understood thoughtfully, a premarital agreement can have many benefits, including protecting financial interests for both parties, avoiding financial conflicts, protecting against debt, and simplifying the divorce process if it occurs.
What Are the Downsides?
Of course, a prenup cannot mitigate all marital sore spots, and the process has its limitations and potential drawbacks:
- Awkward Conversations: Discussing a prenup can feel like planning for failure, which makes it emotionally difficult for couples to negotiate.
- Initial Costs: Hiring attorneys and drafting agreements come at a cost, typically ranging from $1,200 to $10,000 depending on complexity.
- Legal Limitations: California is a no-fault state, and a prenup cannot violate public policy, meaning certain agreements, such as waiving child support obligations, may not be enforceable.
It’s important to weigh these downsides against the practical advantages and approach the process with mutual respect and understanding. Keep in mind that these topics are far easier to manage while the relationship is at its strongest, when both partners are more likely to be fair and collaborative.
Should You Include Child Custody Negotiations in a Prenup?
Issues surrounding child custody and visitation are based on what is in the child’s best interest at the time of divorce, not a contract signed by the child’s parents prior to marriage—this means that provisions regarding child support and custody in a prenup are not likely enforceable and should not be included.
Meet with a Family Law Practitioner
At a minimum, meeting with a family law practitioner to understand how the Family Code will impact their marriage and economic union will allow a couple to decide for themselves if they want the premarital agreement imposed by the State of California or to draft their own rules.
If you are considering a premarital agreement or have questions about family law, Bengfort Law is here to help. We can help demystify the process, offer tailored advice, and ensure your agreement aligns with your financial goals and local legal requirements. Visit Bengfort Law today to schedule a consultation and learn more about how you can safeguard your future—both as a couple and as an individual.
