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What is a Prenuptial Agreement in California?

A prenuptial agreement is a document signed by both parties before getting married. This agreement is a contract that dictates who gets which assets in the event of a divorce. Alternatively, the document may dictate which assets are considered “individual” or “separate” property and which assets are “marital” or “community” property. California is a community property state, which means that the spouses jointly own (almost) all property obtained during the marriage. At the time of divorce, all marital assets are divided 50/50 by cost. Though each individual asset is not divided, both sides are expected to walk away from the divorce with around half the value of all marital assets. The property that you bring to a marriage is your “individual” or “separate” property. This property is yours, and your spouse has no right to it in a divorce unless you intentionally mingle the property with theirs or give them access/ownership rights over it.

Since CA law expects a 50/50 split, many of the battles surrounding asset division are disputes over which assets are individual property and which are marital property. A prenuptial agreement can clarify these issues by intentionally setting aside certain assets to avoid having them divided upon divorce. You may want to keep many of the following assets separate in a marriage:

  • Expected inheritances,
  • Real estate,
  • Business interests,
  • Investments,
  • Family heirlooms,
  • Substantial wealth,
  • And more.

What are Postnuptial Agreements?

Postnuptial agreements are similar to prenuptial agreements, but they are formed after the marriage is already finalized. Many people dislike prenuptial agreements because they may feel pressured to sign the agreement or else risk not going through with the marriage. Alternatively, some might see prenups as distracting during the wedding planning process. For these people, postnuptial agreements may be better.

Postnuptial agreements can do many of the same things as prenuptial agreements by defining certain assets as individual or marital property. This can help ensure that things move more smoothly during divorce proceedings. Postnuptial agreements can even be formed out of court as a divorce approaches so that both parties can have more control over who gets which assets.

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Pros and Cons of Prenups and Postnups

Prenuptial agreements have many benefits for both parties. A spouse with more substantial wealth can have the peace of mind that their assets will be protected if they ever get divorced. This is especially helpful for business owners or investors who need to ensure that their business interests remain intact and that they do not lose part ownership in a divorce. If both spouses are wealthy, this can help them keep straight who should get to keep which assets. 

For a less-wealthy party, they have a more clear idea of what they might be entitled to upon divorce, guaranteeing them at least certain amounts. You can also agree to other things like spousal support in a prenup, or add additional clauses to pay you more if your spouse commits infidelities or abusive acts. The downsides of many prenups could be complex. First, prenups are limited in their scope.

Parties cannot agree at the beginning of a marriage what they will do with children or child support, and any attempts to do so will likely be stricken in court. Second, many see prenups as unfair to the party who walks away from the marriage with fewer assets. Overall the pros often outweigh the cons when discussing prenuptial and postnuptial agreements. As for which agreement is better, the answer is often case-specific. Talk to an attorney about your case to discuss your options for prenuptial and postnuptial agreements.

Attorneys Offering Free Consultations for Prenuptial and Postnuptial Agreements in Santa Barbara, CA

If you are getting married and have substantial wealth, high assets, business interests, or other assets you wish to keep after any potential divorces, talk to an attorney about forming a prenuptial agreement or postnuptial agreement. The Santa Barbara prenuptial and postnuptial agreement lawyers at The Law Offices of Bamieh and De Smeth are available for free consultations. Call our law offices today at (805) 643-5555.

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