If you own real property prior to your prospective marriage, you can confirm that it is your separate property. However, if you contribute to the appreciation to the real property during your marriage, the community will acquire an interest in it and the property will become partly community property. A Prenuptial Agreement can state that you and your finance agree that your real property will remain your separate property regardless of any contributions to the appreciation made during the marriage.
Separate and Community Property: Retirement Accounts and Pensions
You may own a retirement account and/or a pension which you have earned prior to your prospective marriage. A Prenuptial Agreement may confirm that the account or pension is your separate property. In addition, the Prenuptial Agreement may provide that any contributions you make to your account or pension remains your separate property despite that the contributions are being made from your earnings. Otherwise, your retirement or pension may become community property in terms of contributions made during the marriage.
Separate and Community Property: Businesses
You may own a business which you developed and established prior to your prospective marriage. The Prenuptial Agreement may confirm the business as your separate property. In addition, the Prenuptial Agreement may provide that despite any growth in the business during the marriage, your business will remain as your separate property. Otherwise, the business may become community property to the extent it grows during your prospective marriage.
Spousal Support Waivers
Under California law, a Prenuptial Agreement may waive each prospective spouse's future right to spousal support in the event of a divorce. However, there are numerous requirements for a spousal support waiver to be enforceable, including that each spouse has independent legal representation. Further, if there is a wide disparity in the education or sophistication of the prospective spouses, the spousal support waiver may be found to be unconscionable at the time it is sought to be enforced. Therefore, if you desire a waiver of spousal support, you should consult with a Family Law attorney and ensure that your fiance does so as well.
There are numerous public policy reasons why certain provisions are prohibited in Prenuptial Agreements. First, a Prenuptial Agreement may not waive future child support. Second, a Prenuptial Agreement may not in any way promote the possibility of divorce. Third, a Prenuptial Agreement may not contain provisions regarding the fidelity or infidelity of either prospective spouse. Finally, there are statutory provisions regarding the amount of time each prospective spouse must have to review and execute the Prenuptial Agreement.
Because the law governing Prenuptial Agreements in California is complex and difficult to navigate, you should have an experienced Family Law attorney advise you and prepare the agreement. "Do-It-Yourself" Agreements are commonly overturned and found unenforceable years later if a marriage does not last forever. As stated above, independent legal representation for each prospective spouse promotes the enforceability of your Prenuptial Agreement.
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