Do I need a prenuptial agreement in California?

It depends on your circumstances. If you own a business, bring substantial assets into a marriage, or expect a significant difference between your income and your partner’s, a premarital agreement deserves careful consideration. Understanding what California law would otherwise provide is the place to start.

First, understand community property

Many people have misconceptions about community property. As a general starting point, earnings and assets acquired during marriage before separation are community property, while property owned before marriage and gifts or inheritances are generally separate property. Applying those principles to a particular asset can be complicated.

A home purchased before marriage is a useful example. Community funds used to pay down a mortgage can create a community interest, even though one spouse owned the home before the wedding. Appreciation, the source of payments, and the timing of those payments matter. It is too simple to assume that all growth during marriage belongs to the community, or that title alone resolves the question.

A business presents similar issues. Owning a business before marriage does not necessarily make all the value created through work during marriage separate property. These are reasons to get advice before making assumptions about what a divorce would look like.

A premarital agreement has limits

An agreement can address property rights and other financial issues, but it cannot adversely affect a child’s right to support. Do not rely on a prenup to settle future custody disputes. Provisions about spousal support also face special requirements, including independent counsel for the party against whom enforcement is sought.

An online form is not a substitute for careful advice

I once handled a matter involving an agreement the parties had purchased online. On review, it had serious enforceability problems. A document that looks formal is not necessarily a document a court will enforce.

Premarital agreements are more demanding than ordinary contracts. Voluntary consent, financial disclosure, timing, and legal representation can all matter. For agreements signed on or after January 1, 2020, California generally requires at least seven calendar days between presentation of the final agreement and signing, even when both parties have lawyers. There are additional statutory requirements and case law to consider.

Start the conversation early

I approach premarital agreements cautiously because mistakes can surface years later, when the consequences are substantial. No responsible lawyer can promise an “ironclad” result in every future circumstance. Whether you are considering an agreement or have been asked to sign one, allow enough time for advice tailored to your situation.