What can't I include in my prenup?

You can protect your property, define your marital rights, limit litigation upon dissolution, and limit litigation on death.  For example, you can waive pension rights, waive property rights, and may even waive probate rights. You can also prevent your spouse from taking a stake in your business or equity. 
Here are some examples of provisions that you cannot do and that have been found unenforceable by California courts:

(1)   Provision for liquidated damages if Husband had a sexual affair during the marriage.

(2)   Clause that made Wife pay a financial penalty if Husband’s drug addiction reoccurred

(3)   Prenup that gave Wife more money if she refrained from placing Husband in a nursing facility when he lost the ability to make decisions.

If you are drafting a premarital agreement and have questions,  you can contact me at Amanda@gordonfamilylaw.com for more information.

Prenups are smart. Here are some reasons why:

• You can opt out of the default California law and prevent your spouse from getting credit for the time, skill, and effort that you put into managing your money during the marriage. A prenup can ensure that any increase in value of property acquired before marriage stays with that person.  For example, let’s say you have stock worth $100,000 but after you get married you buy a bunch of Facebook or Uber stock. Now, five years into marriage, your stock portfolio is worth $600,000.  A prenup can ensure that the increase in value stays with you. Without a prenup, you would have to split the increase in value with your spouse.
• You won’t be stuck with your fiancés debt. A prenup can protect your assets from creditors - which is something the default rules do not protect for. If your fiancé has significant credit card debt, a prenup can ensure that creditors stay away from your property.
• You won’t have to worry about creating a partnership interest for your spouse in your business. The default in California law is that your spouse accrues an interest in your business over the course of marriage. A prenup can prevent your prospective spouse from becoming an unwanted business partner at divorce.
• You can ensure that choices like relocation, raising a family, and supporting your spouse during grad school are recognized and compensated appropriately in the event of divorce.

If you are drafting a premarital agreement and have questions,  you can contact me at Amanda@gordonfamilylaw.com for more information.

Do I need my own attorney for a Prenup?

Yes.  Prenuptial agreements require that both parties are fully informed about California law and that they disclose finances. Having attorneys on both sides of the agreement prevents future questions about fairness.  A Prenup without two attorneys may be subject to future litigation and enforcement.  Think of it like paying for both the bachelorette and the bachelor party.If you are drafting a premarital agreement and have questions,  you can contact me at Amanda@gordonfamilylaw.com for more information.

Getting Married? Here is why you want a Prenup.

California is a community property state, which means that if your tech startup idea takes off during the marriage, the business will be split (often 50:50) if you get a divorce. This includes any appreciation to any property (like RSU grants and condos) that you acquired prior to marriage. You can opt out, but only with an agreement.  

Gordon Family Law offers workshops at technology companies and individual client services for pre-marital agreement drafting, review, and negotiating agreements entered into prior to marriage.  If you are working in Silicon Valley, have equity in a company, or previously purchased assets, you should be thinking about a prenup.  If you are drafting a premarital agreement and have questions,  you can contact me at Amanda@gordonfamilylaw.com for more information.

Reimbursement and Divorce

Did you contribute money that you earned prior to marriage to property that was acquired during marriage? If so you could be entitled to reimbursement. 

Reimbursable separate property contributions to community property are defined in Fam C §2640(a).

If you make downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property, you could be entitled to reimbursement at divorce.

Please note that Fam C §2640(a) does not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property.

A party who makes such contributions to the community will be reimbursed if the contributions are traced to a separate property source, unless he or she has waived the right to reimbursement in writing or has signed a writing that has the effect of a waiver. Fam C §2640(b). 

If you have a reimbursement issue If you are drafting a premarital agreement and have questions,  you can contact me at Amanda@gordonfamilylaw.com for more information.