Do I need a premarital agreement before getting married?

Barrister’s Corner

IN the absence of a premarital agreement, the general community property presumption under California family code section 760 controls which provides “ ….all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” Family Code §760

This becomes a problem if you are the spouse that has the substantially higher income or the one who accumulates the majority of the assets during the marriage. You are called in family law lingo “the in spouse.” The other spouse (or in our lingo also called the “out spouse” gets a half interest on everything accumulated during the marriage even if the asset is under your name alone or it was accumulated solely due to your sweat and hard work. The out spouse, who stayed at home most of the marriage, gets a one half interest on all the accumulations during the marriage under California community property law. For example, if you opened a savings account during the marriage under your name alone for which you religiously and diligently stash away 25% of your earnings during the marriage while your spouse blows away his/her salary during the marriage, your spouse still gets a half interest in the money you saved in your savings account.

Another example would be if you purchase a piece of real property during the marriage under “your name alone” and have your spouse sign a “quit claim” deed, your spouse may still have a claim for a half interest in your real property. Another example would be if you owned a business prior to marriage, but due to your hard work, long hours of labor, and efforts, the business grew exponentially during the marriage, your spouse may still have a claim for an interest in the business.

Signing a premarital agreement may serve as added protection to the future “in spouse” and a hurdle for the future “out spouse” by avoiding or altering the applicability of California community property law to assets 1) already owned by each and 2) to property and income to be acquired or earned during their marriage.

Marriage of Dawley (1976) 17

C3d 342, 349, 131 CR 3, 7;

Marriage of Grinius (1985) 166 CA3d 1179, 1186, 212 CR 803, 807 Premarital agreements may validly provide that the earnings and accumulations of each party during marriage will remain that party’s separate property, free of any claims, community property or otherwise, of the other party. Marriage of Dawley, supra, 17 C3d at 350, 131 CR at 8; Cheney v. City & County of San Francisco Employees