PLEASE NOTE: To protect your safety in response to the threats of COVID-19, we are offering our clients the ability to meet with us in person, via telephone or through video conferencing. Please call our office to discuss your options

Premarital agreements can make divorce negotiations easier

California’s community property laws require marital property to be divided equally even when divorcing spouses have only been married briefly, which is one of the reasons why premarital agreements are common in the Golden State. Prenuptial agreements allow couples to make their own decisions about how their assets will be divided should they choose to divorce, and the agreements may also include provisions that address other potentially contentious issues like spousal support.

Prenuptial agreements can be particularly useful when separate property becomes commingled during a marriage. The assets that spouses own prior to getting married are considered separate property, and some assets acquired during a marriage are not subject to division in a divorce. Gifts from third parties and inheritances are treated as separate property in a divorce. However, matters become more complicated when separate property becomes entwined with marital property.

Examples of commingling include using income earned during a marriage to improve a home that is considered separate property or improving a marital home with inherited funds. Drafting a premarital agreement may prevent these situations from adding a layer of complexity to property division negotiations. Premarital agreements may also be requested by business partners or investors to prevent commercial interests from changing hands in a divorce.

It is not uncommon for premarital agreements to be challenged in a divorce, and judges may declare them invalid if they deem the terms to be unusually harsh. This sometimes happens when a couple accumulates wealth while they are married but neglects to revise their premarital agreement. Attorneys with family law experience may suggest revisiting premarital agreements on a regular basis to ensure that they remain essentially fair. Attorneys might also urge couples who are considering a premarital agreement to negotiate in good faith and disclose all of their assets. Any hint of deception or duress may also make premarital agreements difficult to enforce.

FindLaw Network