Written by attorney Vanessa Soto Nellis

California Prenuptial Agreement: Top 3 Misconceptions

In California, property acquired during marriage is presumed to be community property, equally divisible in divorce. The exceptions to this are when property is acquired by gift, bequest, inheritance, or there is a prenuptial agreement in effect.

A prenuptial agreement is an agreement between prospective spouses in contemplation of marriage, to be effective upon marriage, that addresses present and future property rights. Specifically, a California prenuptial agreement is used when a couple wants to avoid or modify the state's community property law regarding assets already owned by each person, and to property and income acquired during marriage.

Misconception #1: Prenuptial agreements are unfair and unromantic.

In movies involving prenuptial agreements, one party is often trying to take advantage of the other party. The truth is, if a prenuptial agreement is very slanted in favor of one person, the other person will likely object to it during a divorce. Thus, attorneys drafting reasonable prenuptial agreements help their clients avoid problems in the long run.

In actuality, a couple working on a California prenuptial agreement is laying down rules for property and support in case of divorce. Prenuptial agreements are often used to preserve a person's property rights. Deciding how your finances will work before marriage may lead to a smoother marriage.

Money is something many couples fight about, and it makes sense to discuss how the household finances will work. As with any other partnership, two people would meet and formulate a plan for handling monthly expenses, financial obligations, savings, and other goals.

Misconception #2: A California prenuptial agreement is too expensive.

To quote a professional who recently got divorced and did not have a prenup, "They are expensive because they are worth it."

The reason prenuptial agreements cost thousands of dollars is that clients are paying for the attorney's time in negotiating the terms of the prenuptial agreement, as well as the attorney's signature approving the prenup. Should a party ever contest the prenuptial agreement, the attorney will likely have to serve as a witness as to events concerning the execution of the agreement.

Misconception #3: Only really wealthy people need a prenup.

Anyone with significant income or with property or possessions valued at $10,000 or more should consider having a prenuptial agreement to protect his/her assets in the event of a divorce. Prenuptial agreements can protect an asset from becoming community property, divisible at divorce. If a party has an asset that is valuable and would like to make sure he or she receives that asset in the event of a divorce, that person should consider a prenuptial agreement.

California prenuptial agreements are commonly used by:

  • Two Professionals (e.g. they both have retirement plans and savings that they wish to preserve),
  • People Entering a Second Marriage (e.g. they would like to preserve assets for children from a prior relationship)
  • People Who Inherit/Will Inherit, who would like to make sure the inheritance is preserved for future generations.

Unlike an estate plan (e.g. will), prenuptial agreements take effect right away.

Additional resources provided by the author

Vanessa Soto Nellis, Esq. is a Shareholder and Los Angeles family law attorney at Lewitt Hackman in Encino. Ms. Nellis represents client in dissolution of marriage proceedings, whether litigated or mediated, and is available to consult with clients contemplating divorce or wanting to know about California law in family law matters.

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