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How to protect personal assets prior to marriage without a prenuptial agreement

San Jose, CA |
Filed under: Prenuptial agreement

I would like to know if there's a way to protect my assets prior to marriage without a prenuptial agreement? Also, if we were to buy a house together using funds I accumulated prior to marriage, how can I document the level of my contribution should the partnership ends in dissolution? Any other advice would be greatly appreciated.

Attorney Answers 3


Separate property can stay separate as long as the account is only in your name and no community funds are used.

If you want to use separate funds to buy a community property house, you can document your contribution by having your wife sign a promissory note providing that she will repay the note if, as, and when the house is sold or a divorce is filed by either one of you. You can also agree that any appreciation gets divided on the basis of separate property contribution and communty property contribution to the house. Not very romantic, is it?

The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

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It is better if you buy the house before you marry her and not add her to the title. If you separate her share will be much less. See an attorney regarding Moore Marsden calculations.

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Is there a particular reason why you do not want a pre-nup? A good agreement in the first place will save you lots of trouble in the end, should you end up with a dissolution.

The key to keeping separate property separate is DO NOT COMMINGLE. As soon as you mix up funds, accounts or other separate property, you put yourself in the position of having to “trace” your separate property funds through community property accounts, assets, etc. This type of commingling may be considered a gift to the community. Finally, if you do not express your intentions in writing, it opens the door for confusion later. Consider consulting with a family law attorney to draft a pre-nup that accomplishes what you’d like to accomplish and removes the uncertainty to have expressed here.

Best of luck to you.

This response is intended to be a general statement of law, should not be relied upon as legal advice and does not create an attorney/client relationship.

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