What you need to know about California Prenuptial Agreements (or Prenups)

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What is a California Prenuptial Agreement, also known as a “Prenup”?

Prenuptial Agreements (or Prenups) are legal contracts signed between two people before they enter into a legal marriage. A Prenuptial Agreement can provide you and your new spouse clarity regarding what will happen with your property and finances if the two of you decide to divorce in the future.

Why should you have a prenuptial agreement?

Many couples anticipating their “big day” wonder if a prenup is right for them. More often than not, I find that people believe a prenup isn’t for them because they think it’s a premonition of divorce and/or they don’t want to kill the romance of their upcoming nuptials. Many couples don’t take into consideration, that aside from the commitment and love associated with marriage, marriage is actually a legal contract governed by the law! Prenuptial agreements can be looked at through a different lens. It provides a framework for couples to be honest and communicative about expectations when they are entering into a marriage.

When should you draft a Prenup?

“Prenups” are drafted before a couple enters into marriage. A prenuptial agreement typically identifies each spouse’s assets and debts before marriage and dictates how they will be divided if they divorce. There’s a false assumption that prenups are only for people who are extremely wealthy. In reality, prenups are for all types of couples who simply want to prevent future contentious behavior and excessive legal fees in the unfortunate case of divorce.

What happens if you don’t have a Prenup?

In California, if a couple chooses to marry without drafting a prenup, the assets and debts belonging to the spouses in the marriage are subject to California community property laws. This means that virtually all assets and debts accrued during the marriage would be split evenly upon divorce. Typically, couples will also decide whether they wish to waive spousal support in their prenuptial agreements. But, any reference to child custody or child support are not legally enforceable and should not be included in a California prenuptial agreement.

How to start a Prenup?

Drafting a valid prenup in California requires drafting the prenuptial agreement according to the laws of California. There are many different components to make sure your prenuptial agreement is valid and enforceable in California. The most important being that the parties need to understand what they are signing!

What happens when you don’t have a Prenuptial Agreement?

San Francisco Giant’s slugger Barry Bonds spent several years litigating the validity of his prenuptial agreement in California. This was because his ex-wife didn’t have a separate attorney represent her when their prenup was drafted and signed. His case went all the way to the California Supreme Court. And while the Supreme Court found his prenuptial agreement to be valid, his case was an important lesson for other couples on how to ensure your prenup is legally enforceable.

Read this article for more information about the Bonds case – https://www.sfgate.com/news/article/State-s-High-Court-Upholds-Bonds-Prenup-Pacts-3303075.php


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Candice Saadian Costa

Candice Saadian Costa, who runs Golden Gate Mediation in San Francisco, is a California licensed attorney who has dedicated her legal career to working with families in high-conflict. Serving as both a litigator and mediator, Candice represents both parents and minors in high conflict juvenile dependency matters and mediation services to couples facing divorce. In her family law mediation practice, Candice strives to enforce the idea that the divorce process can be navigated through with dignity and does not have to become a drawn-out, expensive and adversarial process. Candice respects each of her clients’ unique situations and tailors her services accordingly. She is committed to always maintaining impartiality and fairness to each party.