26 Feb You (or Your Fiancé) Want a Prenup: 10 Important Topics To Discuss
People sometimes think there is a “standard” prenup in California. In fact, while there are common issues that are raised, these issues can be addressed in different ways depending on the unique situation and goals of the couple. Just as there is no standard wedding — you make decisions about your wedding that reflect who you are — you can make decisions for your prenup that reflect who you are.
The following topics are important to discuss when deciding how you wish to define your respective legal and financial rights in a prenuptial (prenup) agreement in California.
- Assets Owned Before Marriage. Will the assets that you bring into the marriage remain separate property? Will there be any exceptions?
- Increase in Value of Separate Assets. If your separate assets appreciate in value during the marriage, will the increase in value be separate property or community property? What if the asset is a business that the owner-spouse continues to actively manage during the marriage?
- Debts Incurred Before Marriage. Will debts incurred before marriage (such as credit cards debts and student loans) remain the separate liability of the person who incurred the debt? If the community pays off premarital debts, will the community have a right to reimbursement?
- Family Home. Will a family home purchased during the marriage be separate property or community property? If one person uses separate funds to pay the deposit on a family home, will there be a right to reimbursement of that contribution, or will it be considered a gift to the community?
- Earnings During Marriage. Will salaries earned during the marriage be separate property or community property?
- Retirement Benefits. Will retirement benefits or other incentive compensation earned during the marriage be separate property or community property?
- Estate Planning. Do you want each person’s share of community property to be given to the surviving spouse upon death? Do you want to specify a minimum commitment for providing for each other in the event of death?
- Living Expenses. Do you want to specify who is responsible for the household expenses or whether the money comes from separate or community funds? How about expenses for a separate property house, such as mortgage payments and property taxes?
- Bank Accounts. Do you intend to have joint bank accounts or to otherwise commingle funds, or do you want to keep all accounts separate?
- Spousal Support. Do you want to specify whether (or how much or how long) there will be spousal support in the event of divorce?
These are just some of the questions to keep in mind when deciding to get a prenup that is not “standard” but instead is right for you. An attorney can inform you about what the law would provide, and help develop creative options that ensure the agreement is balanced and fair.