There are plenty of reasons to consider a prenuptial agreement in California. Here’s what to know if you don’t sign a California prenup.
If the couple did not agree to a prenup prior to marriage, property division is dictated by the California Family Code and the Probate Code and can be negotiated between spouses. Without a prenuptial agreement, the lines of ownership are greatly up for debate given that the property between spouses is not specifically allocated to one another.
What are the California Family Code and Probate Code?
The California Family Code is a set of rules that dictates the cases filed in family court pertaining to divorce and legal separation. The California Probate Code dictates what happens to someone’s property when they die or become incapacitated.
What dictates a California Prenup?
A prenuptial agreement is based on the statutes from California’s Uniform Premarital Agreement Act. A prenup does not go into effect until a couple is joined in marriage. There are requirements that the agreement must meet to ensure its validity.
These requirements include:
- premarital property (details the value and ownership of property of the individuals involved)
- premarital inheritance (Wealth/property the individuals in the marriage will be inheriting)
- application of separate property (who maintains the ownership of properties)
- infidelity clause (identifies what the repercussions would be if one were to be unfaithful to the marriage)
- spousal maintenance clause (allocated payment that would be provided to a spouse if divorce were to occur)
- marital real estate clauses (the allocation of real estate to individuals in the marriage)
Related: How to Protect Yourself With a Prenup in California
FAQ About Not Signing a Prenup in California
Why should I sign a prenup?
Signing a prenup can ensure a greater sense of financial independence and, in certain cases, security. Oftentimes, spouses bring debt or student loans into a relationship and a prenup can ensure that the other spouse does not have to take on the obligations of the due finances.
Related: Should I Sign a Prenuptial Agreement: Read This
Why shouldn’t I sign a prenup in California?
Some have moral qualms about signing or asking their spouse to sign a prenuptial agreement given the nature of its protectiveness over assets. Some say prenups insinuate a lack of trust or commitment to one’s significant other. Instigating a prenup can oftentimes direct too much attention at the start of marriage towards money. But, it always up to the spouse to put their best interests first when considering whether to sign a California prenup.
Is there a way to protect your assets without signing a prenup in California?
Some ways to protect one’s assets without signing a prenup in California include:
- Having separate bank accounts, which can serve as a means to protect assets
- Using an inheritance separate to keep items one brings into the marriage separate from a spouse’s property
- Receiving an appraisal of business value to have a record of a legitimate value of the property one has at the start of a marriage
Does a Prenup Protect Future Inheritance?
A prenup can include details on the state of inherited assets and whether they will remain the property of the spouse. If a prenup does not include provisions on the state of future assets, all documentation relating to the state of property should be saved and should prove that the property was intended for the owner and not the spouse. Another option is explicitly placing the inheritance under a trust for oneself or their children.
Related: Do California Prenups Protect Future Assets?
Can a prenup be broken in California?
There are no expirations for prenups in California. However, both parties in a marriage can draft an agreement to void or make mutual modifications to the prenuptial agreement. Since 1986, the Uniform Premarital Act has been in effect. This law stipulates that written prenuptial agreements that are signed by both parties will be instigated once the couple marries. Violating a prenuptial agreement differs based on how detailed the prenup is. How exactly to violate a prenuptial agreement requires the following:
- Proving that the agreement was signed under fraud or coercion
- The agreement is unreasonable
- The situation of the parties has changed and has made the agreement no longer enforceable
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If you or a loved one would like to know more about what happens when you don’t sign a prenup in California, get your free consultation with one of our divorce attorneys today!