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By Nancy and Dawn Clement
June 16, 2010 (San Diego’s East County) –Love and marriage can be beautiful for all concerned, but there are some things to consider when thinking about getting married . We consulted an attorney, Jennifer Hughes, to share some ideas on the subject of prenuptial agreements.
California is a community property state. Community refers to the legal entity created when you marry and consists of you and your spouse. Wages or salaries become community property after a marriage-- unless you take steps to opt out of the default community property law. This is done through a legal agreement is called a “Prenuptial agreement” (prenup) and must be created by a lawyer prior to the marriage. If you wish to waive spousal support in the event of a divorce, both of you will each need your own lawyer to represent each of you separately.
Two things to keep in mind when thinking about prenuptial agreements are the assets and the other is the liabilities each person brings to a marriage. Do either you or your partner own considerable assets like real estate, or stocks and bonds? Do you want these assets to become community property? If not, you would want to consult with a lawyer to make sure you understand the rights and risks of community property. No, property acquired before marriage remains separate property if traceable and not commingled (mixed together).
Prenups can be beneficial in clarifying ownership interests of both assets and debt. An example: Another time that a prenuptial agreement can be beneficial is if one person is bringing a lot of debt to the marriage, like a $100,000 student loan, and wants to keep the debt separate and not have it become community property.
Although property acquired by inheritance, bequest, gift, or owned separately prior to marriage remains separate property. It can easily become community property if the money is commingled.
Caution: You must keep careful records and individual separate accounts for separate property. If, for example, you pay for improvements with community property wages, the community gains an interest in the property, even though you hold title to it as separate property. Keeping careful records and individual accounts is critical without a prenuptial agreement, but is still good practice even if you have one in place.
Another example: One spouse may wish to make improvements on separate property, which requires a loan. Under community property law, the loan proceeds become community property, and both spouses will likely incur obligation for repayment of the debt. The community will gain an interest in the property if the community property funds (the loan) are for used for improvements.
Before you get married, discuss and consider whether a prenuptial agreement is right for you. Respect and trust your partner enough to discuss whether a prenuptial agreement is the best choice for you as a couple. This conversation can cause disharmony on occasion, but it is an important one to have. Keep these ideas in mind to help you with this important, yet often overlooked conversation.
This is not legal advice; as with any important matter, it is important to consult with an attorney.
We want to thank attorney Jennifer Hughes for taking time to share her ideas with Dollar-Wi$e Divas and allowing us to pass this information to you!
Special Offer to our readers: Contact attorney Jennifer Hughes for a free 30-minute consultation on pre-marital agreements and estate planning, at 619 840-7797 or visit her website at www.HughesLawOffices.com.
Nancy Clement is an east county Realtor®, mortgage broker and freelance writer and can be reached at 619-563-4184 or Dollar-wiseDivas@cox.net. Dawn Clement is a stay-at-home mother of three, a freelance writer, and creative shopper.
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