We are in a new era and Prenuptials are on the rise and for good reason.
Why? More couples want to spell out their financial relationship and expectations when entering a marriage. People delay getting married and therefore enter marriage with more assets. People inherit money from their parents and those parents want to preserve this wealth for their offspring should a divorce occur.
Even though it is not romantic to negotiate a prenuptial with your future spouse, it is an option that should be considered. If the parties do not make their own rules, and eventually get divorced, state law interpreted by a State Family Law judge will set down the rules. Even if the parties identify their separate property before marriage, it is possible for the community to acquire an interest in the separate property if community property money or effort is used on the separate property asset.
Conceptually, there are ways to work up a pre-nuptial agreement: The parties simply identify separate property assets they own before marriage and adopt the state marital laws which are often community property. As stated in paragraph 3 above, the community can acquire an interest in the asset because of comingling community property money with the asset. Or everything stays separate after marriage. Normally after marriage, earnings and efforts are community property. Under this concept, no community property is ever created. Everything stays separate after marriage except accounts or asset purchases that are designated community property. Under this concept, a joint account for living expenses would be set up to pay for communal living expenses. A house could be bought as a community property asset under the title of joint tenants. Everything follows community property laws after marriage, but certain assets stay separate and do not accrue a community property component.
A pre-nuptial does not have to be chiseled in stone. One option if the marriage survives 20 years or more is to have everything become community property, often referred to as the dissolving prenuptial.
