This brief guide is intended as a first step towards understanding what you can accomplish with a prenup. You may not need a premarital agreement, but if you are considering one, approach it the right way. Use the process to make your marriage stronger. Part of doing that is understanding what you can and cannot accomplish with a prenup. The following is a brief overview of the 3 of the most common issues addressed premarital agreements.
The first issue is what to do with assets acquired before marriage. For example, California is a community property state, which means that income earned during marriage is community property and gets split evenly between the parties if there is a divorce. Assets acquired before marriage are separate property and remain separate so long as they're not commingled. The challenge here is that assets are very easily commingled, and most couples end up doing so unintentionally. The vast majority of California premarital agreements address what happens to assets acquired before marriage, and closes off the loopholes in California community property law.
The second issue is income earned during marriage. As stated above, income earned during marriage is considered community property in California. That means that whatever you earn during marriage is owned one half by each spouse. This rule simply does not fit with everyone's philosophy of marriage, and those people choose to modify these terms in their premarital agreement. You can set up just about any rule you like for this issue - it just needs to be clearly drafted and fully understood by both parties to be enforceable.
The third issue most couples want to address with a prenuptial agreement is spousal support. After separation in California, for example, in most cases, the higher earning spouse will pay the lower earning spouse some amount of money every month in support. The problem is that the amount of money, and the duration of the payments are both up in the air, and left largely to judicial discretion. This makes it hard to plan for the future. Many couples want to create certainty around this issue, so they modify the terms in various ways. For instance, couples might limit the maximum support amount, limit the duration, or create a lump sum payment in lieu of support.
Again, most modifications are acceptable to the courts so long as they're fair, clearly drafted, and everyone knows what they're getting into. Be sure to consult with an experienced lawyer prior to signing a prenuptial agreement.