Law Office of Stephen W. Penn and Associates

What can I put in my prenuptial agreement?

Planning for divorce while also planning your marriage might feel counterintuitive, but it is actually a very smart strategy. Divorce can be an emotionally complicated process, so splitting up your assets or dealing with other important issues may end up being more difficult than necessary. A prenuptial agreement can help you sort out these issues while you and your soon-to-be spouse are still on good terms. 

While extremely useful, prenups are still legal documents. You need to understand how to use them, what to include and how to make sure they are enforceable. 

What can I put in my prenup? 

In general, you can figure out most things that involve your assets or debts. You can specify which assets are your personal property and any intentions you might have to deviate from California's equitable distribution law, which requires a fair -- but not 50/50 equal split -- division of property. You can also use a prenup to protect yourself from taking on the financial risk of your fiance's extensive debt. 

You may also want to outline expected responsibilities for your marriage. Who will be responsible for paying monthly bills? Will you contribute to only one person's retirement account, or both? Answering these types of questions gives you the opportunity to discuss tough financial topics before you walk down the aisle. 

Prenups do not cover everything 

If you and your betrothed already have children, you may feel tempted to include child custody and support arrangements in your prenuptial agreement. Although it might seem convenient, you cannot do this. Child support is calculated by the court based on a variety of factors, including income, which can change over the course of the marriage. Child custody must center around the child's best interests, so it cannot be addressed potentially years before it might go into action. 

Alimony waivers are a tricky situation that many people try to include, but they are not always upheld. Not only is it in your best interests to not waive your rights to this important post-divorce support, but you might end up spending time on this part of the agreement only for it to be struck down later. 

Do I really need a prenuptial agreement? 

If you are on the fence about this topic, consider the possible benefits of having one -- increased protection during divorce, potentially decreased tension and the ability to discuss difficult topics before saying "I do." You can get a lot out of these documents. 

California family law can be complicated though, so crafting a thorough prenuptial agreement that will be upheld in court can be tricky. You and your fiance may want to consider consulting with an experienced attorney. 

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  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012