Five Facts About Prenuptial Agreements

1. A Prenup Takes Effect When You Get Married

If you sign a prenup but never get married, it has no effect because it only applies to married couples. Once you get married, it's an enforceable contract. However, its relevancy is triggered later - by events like divorce or the death of a spouse. At that point, its provisions become the basis for determining the division of money and property and payment of spousal support.

2. A Prenup Works in the Background

In California, the default rule for married couples is that all the income either spouse earns during marriage is community property. Any effort you put into any activity during marriage that makes money or increases the value of something is likely community property.

A prenup agreement can change this default rule and allow you to keep income earned after marriage as separate property. Why does this designation matter?

How property is characterized during marriage determines how much you get to keep in a divorce. Community property is split 50-50 in divorce, but you keep 100% of your separate property. This designation also affects the amount of money available to leave to others through a will or a trust.

3. You Are Held to What You Agreed to for Your Entire Marriage

Once you sign a prenup and get married, it applies for the length of your marriage, whether it's five days or fifty years. You can't get out of it on your own. The only way to undo it is if both you and your spouse agree in writing to change or revoke it.

Your life circumstances, opinions on financial issues, and feelings about sharing finances with your spouse may change during your marriage. But the financial terms of your married life are whatever you agreed to in your prenup when you signed it before marriage.

By not having a prenup, you are subject to the rules for married couples created by the California legislature, including the rules for splitting property in a divorce.

4. A Prenup Resolves Issues in Advance

Marriage is a joining of many things, including financial resources. The end of a marriage is a split of a relationship, including a financial relationship.

A prenup can go a long way toward resolving issues in divorce by its prior identification of property as community or separate and by stating how much spousal support will be paid to whom and for how long. Because you already agreed in your prenup, there will hopefully be less arguing in court.

A prenup agreement can work in connection with a will or a trust to make sure your last wishes are followed. This is especially true if you want property to go to someone other than your spouse.

5. A Prenup Agreement Has to Be Presented as Evidence

A prenuptial agreement is a private contract. No one else may know it exists. It doesn't normally get filed anywhere. If you get divorced, the court will not have a copy unless someone provides one.

A prenup agreement is evidence of and instructions for the terms of your divorce. Since both you and your spouse voluntarily signed this contract, if you don't like its terms later, you will have to come up with an argument as to why it should not be followed.

It can be decades between the time you sign a prenup and the time you need to use it, so keep it in a safe place. If you lose your prenuptial agreement, it will be hard to prove that you and your spouse agreed to specific terms for your marriage. You will then have to follow whatever the default rules are in California.