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Prenuptial agreement lists house as separate, but asked to pay for HOA fees and utilities.

Los Angeles, CA |
Filed under: Family law

If entering a premarital agreement and the house is listed as separate property, but the non-house owner is asked to cover costs of utilities or pay HOA fees, how does that figure into the "separate property" issue? Does the premarital agreement need to reflect that or does something like a separate "renter's agreement" need to be added or drafted?

Attorney Answers 3


  1. The whole pre-marital agreement has to be reviewed by an attorney. If you do not have a reviewing attorney your pre-marital agreement may not be enforceable. To answer your question though, the utilities and HOA dues do not add value to the house. They are ongoing monthly maintenance and use expenses and thus if you are living in the property, should be paid out of community property. But, that being said, without reviewing the whole agreement I cannot tell you whether or not this is fair or right in this situation. If you have not had it completely reviewed by an attorney, then the agreement may not be worth the paper it is printed on.

    Michael Schwerin, San Jose, California phone: 408-295-4232 email: schwerin@ix.netcom.com. Consultation fees, rates and retainers vary based on need and ability to pay.


  2. In the Prenups I have seen, many times there is a dedicated ARTICLE dealing with the couple's ongoing maintenance expenses and how same is to be funded in terms of responsibility. This of course has nothing to do with the home being separate property or not (as per my colleagues answer on this). Depending on the level of income of each spouse the agreement can describe whatever the 2 parties think are fair in this regard while they are married. Alternatively, I have seen other agreements where it is not even discussed at all as an agreed upon provision in which case the couple work it out on their own as to how they want to manage this aspect of life.

    My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.


  3. No, you do not need a renter's agreement. As suggested by counsel you may need a much better prenup with expert advice. The internet cannot replace expert advice on such issues.

    Ms. Straus (aka Carroll) may be reached at 800-400-8978 during regular business hours, Pacific Time, or anytime by email at: ECSEsquire@AOL.com. All of Ms. Straus’ responses to questions posted on Avvo are intended as helpful information based upon the facts stated in the question, and are not to be relied upon as a final legal opinion. It may not be what you wished to hear, and it does not create an attorney-client relationship. Ms. Straus is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him or her. Me Straus provides “unbundled” services if you need specific assistance with a specific issue.

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