25 Creative Clauses You Can Include in a Prenup

Most people think prenups are just about protecting separate property or waiving spousal support. But a thoughtful, personalized prenup can do much more. Here are some creative ideas for a premarital agreement.

·       - Delay the start of community income until a specific event (e.g., birth of a child or 5-year anniversary).

·       - Define what happens if one partner contributes separate funds to a shared home—including reimbursement and appreciation.

·       - Specify how future real estate purchases will be titled and managed.

·       - Treat stock options, RSUs, or startup equity earned during marriage as separate or shared.

·       - Include required notice or consent for major financial transactions above a certain threshold.

·       - Mandate that spouses remain named beneficiaries on life insurance or retirement accounts.

·       - Require annual financial check-ins or account disclosures.

·       - Carve out how inheritances will be treated, including whether use in joint accounts alters their character.

·       - Designate how business ownership and growth will be treated—whether formed before or during marriage.

·       - Create a plan for how to handle one spouse supporting the other through grad school or career transitions.

·       - Include compensation or reimbursement for unpaid labor (child-rearing, working in a family business, etc.).

·       - Allow for automatic updates to certain terms after major life events (e.g., having children, buying a home).

·       - Create tiers of spousal support based on length of marriage or specific circumstances.

·       - Waive spousal support under normal circumstances, but allow exceptions for disability or stay-at-home parenting.

·       - Require mediation or collaborative law before filing for divorce.

·       - Create rules around charitable giving or financial support for extended family.

·       - Outline whether gifts exchanged during marriage become community or remain separate.

·       - Agree to joint or separate tax filing and how liabilities/refunds will be divided.

·       - Require written agreement for significant credit card debt or new loans.

·       - Include an expiration date for the prenup or certain provisions (e.g., after 10 or 20 years).

·       - Set rules for retirement savings—whether contributions are joint or separate.

·       - Require continued financial support for a non-earning spouse in the event of disability or illness.

·       - Specify expectations and protections related to fertility treatments or surrogacy costs.

·       - Include values-based clauses that reflect your shared goals and commitments (like financial transparency or mutual respect).

Here’s a history of title presumptions and separate property contributions under California law, leading to the enactment of Family Code § 2640:

Pre-1975: Title Controlled Character

Property titled in a married woman’s name alone was presumed to be her separate property (Civil Code § 5110).

Courts relied heavily on title form to determine character, often disregarding actual intent or source of funds.

1965–1980: The Lucas Era

Spouses often took title as joint tenants or in both names, even when one used separate property.

In Marriage of Lucas (1980), the court held that taking joint title created a presumption of a gift of separate property to the community.

This meant no reimbursement at divorce without a prior written agreement stating otherwise.

1984–1985: Legislative Response

The Legislature responded to Lucas by enacting Civil Code § 4800.2 (now Family Code § 2640), effective 1985.

This gave a spouse the right to be reimbursed for separate property contributions to community real property, unless there is a written waiver.

Reimbursement applies to down payments, principal payments, and improvements, but not interest or appreciation.

Reimbursement must be traced to a separate property source.

Post-1985: Form of Title is Not Dispositive

Title no longer controls the character of marital property.

Reimbursement rights under § 2640 are preserved regardless of how title is held, unless expressly waived.

Modern practice focuses on tracing funds and documenting intent, rather than relying on the deed alone.

When Is It Really Over? Understanding Date of Separation in California Divorce

In California, the “date of separation” matters. It marks the point when new income, retirement contributions, and other assets stop being considered community property. But figuring out that date isn’t always straightforward.

Under California law, separation happens when one spouse decides the marriage is over and their actions make it clear that the break is complete and final.

But what if they broke up and got back together?

A past period of separation doesn’t necessarily mean the marriage was over. If the couple later resumed their relationship—by living together, showing affection, or continuing to share finances—the law often sees that as a reconciliation. That resets the clock.

Even if spouses live apart for years, they may not be legally separated if they still function like a couple in meaningful ways.

It’s about conduct, not just distance

Living in separate homes, or even filing for divorce, doesn’t always mean the marriage has ended. If the parties still spend time together, travel as a family, exchange gifts or messages of affection, or stay sexually involved, the law may find that the marriage continued despite the physical distance.

What counts as reconciliation?

Reconciliation isn’t just about moving back in or sleeping together. It requires mutual intent to fully restore the marriage, along with conduct that reflects that—such as shared finances, social presentation as a couple, or returning to marital roles.

Cohabiting for practical reasons (like parenting or finances) doesn’t automatically undo a separation, but it raises questions. Courts look at the totality of the circumstances, not just one factor.

The Bottom Line

Temporary separations—even long ones—don’t necessarily end a marriage. To be legally separated in California, there has to be a final and complete break, both in words and in actions. And if a couple reconciles after a separation, the legal date of separation likely moves forward to when the final break actually occurred.

If you’re navigating this question in your own divorce, it’s worth talking with a family law attorney to assess how your history may affect your rights.

Splitting Assets in a California Divorce: What You Need to Know

Dividing property during divorce can feel overwhelming, especially when you’re already navigating the emotional toll of separation. California’s community property rules provide a clear framework—but how those rules apply in real life can have major financial consequences.

Below is a practical overview of how assets are divided in California divorces and what to look out for.

What Counts as Community Property?

Community property includes anything acquired during the marriage using income earned during the marriage. It doesn’t matter whose name is on the title, deed, or account.

Examples:

• Homes or real estate purchased during the marriage

• Retirement accounts (401(k)s, pensions) contributed to during the marriage

• Income, bonuses, and stock options earned during the marriage

• Vehicles, bank accounts, investment accounts

• Business interests developed during the marriage

What Is Separate Property?

Separate property belongs to one spouse and is generally not divided in divorce—unless it has been commingled or transmuted.

Examples:

• Anything you owned before marriage

• Inheritances or gifts made to you alone

• Property acquired after the date of separation

• Passive income from separate property (if not commingled)

• Personal injury settlements (with exceptions)

Note: If separate and community property are mixed without documentation, or if you change the character of the asset, it may be treated as community property.

How Are Community Assets Divided?

California law presumes an equal division of community property, but this doesn’t mean splitting everything 50/50 down the middle. Division is based on total value, not identical assets.

Common methods:

• In-kind division: Both spouses get equal portions of accounts or assets

• Offset: One person keeps the house, the other gets investments or retirement to balance it

• Buyout: One spouse pays the other for their share of an asset

• Sell and split: The asset is sold and the proceeds are divided

When Is Division Not 50/50?

While equal division is the default, the following may justify an unequal split:

• A valid prenuptial or postnuptial agreement

• A negotiated settlement agreement

• Breach of fiduciary duty, hiding assets, or financial misconduct

• Reimbursement claims for separate property used for community benefit

• Tax impacts of dividing assets

• Business ownership, where one spouse continues to operate the business

What Happens to a Business?

If one spouse owns a business, any increase in value during the marriage may be partially community property. Business valuation often requires a forensic accountant. Courts may assign the business to the spouse who runs it and give the other an offset or a buyout.

What About Debt?

Like assets, debts are categorized as community or separate:

• Community debt: Typically includes credit card balances, loans, or mortgages incurred during the marriage

• Separate debt: Usually includes debts from before the marriage or after separation

Reimbursement claims may arise if marital funds were used to pay separate debts—or vice versa.

How to Protect Your Financial Interests

• Get organized: Collect bank statements, deeds, and account info

• Clarify ownership: Identify what’s separate and what’s community

• Avoid premature changes: Don’t retitle property or change beneficiaries without legal advice

• Value your assets: Use qualified experts when needed

• Plan for taxes: Understand tax implications of asset division and support payments

Whether you’re considering divorce or just want to be prepared, understanding the rules can help you make better decisions now and avoid conflict later.

What Happens If You Don’t Get a Prenup in California?

If you get married in California without a premarital agreement, the law already has one for you.

Under California’s Family Code, there are default rules that govern how your income, assets, debts, and even spousal support are handled if your marriage ends in divorce—or if you pass away without an estate plan. These are often referred to as California’s default prenup.

For some couples, the default rules are just fine. For others, learning the default helps clarify what they’d like to change through a formal premarital agreement. Either way, understanding what the law says by default is an essential first step.

Community Property: You’re in It Together

When you get married, you become part of what the law calls “the community.” That means:

• Earnings during marriage are shared equally—even if the income is deposited in an account under one person’s name.

• Assets acquired during marriage are presumed to be community property.

• Employment benefits, like stock options, retirement contributions, and bonuses, are community property if earned during marriage, even if they vest later.

Separate Property: What’s Yours Stays Yours (Mostly)

Some things remain separate property by default, such as:

• Property owned before marriage

• Gifts or inheritances received during the marriage

• Income earned after separation

But it’s not automatic. If there’s a dispute, you’ll need clear records showing where the asset came from and how it was kept separate. Also, if your efforts during the marriage increase the value of separate property (like managing a business), some of that growth could become community property.

Homes, Businesses, and Mixed Assets

• Using separate property (like an inheritance) to buy a home in joint names? You may only be entitled to reimbursement of your contribution—not a share of the home’s appreciation.

• A business you owned before marriage stays separate, but if it increases in value during the marriage, the community may gain an interest.

• If you inherit a home and keep it in your name, it remains separate—but using community funds to pay the mortgage may give the community a share of the appreciation.

Debts: Not Always Personal

• Debts from before marriage remain your responsibility—unless community funds are used to pay them.

• Debts during marriage are generally shared, even if one spouse doesn’t agree with how the money was spent—unless the debt was clearly unrelated to the marriage.

Divorce: Splitting Property and Debts

By default:

• Community assets and debts are divided equally, though the court can divide them through sales or offsets (e.g., one person gets the house, the other gets an investment account of equal value).

• A spouse who remains in the home after separation may owe “rent” to the community.

• Spouses who pay community debts after separation are generally reimbursed—unless the payments replace support.

Spousal Support: Not Automatic, But Possible

Each spouse has a duty to support the other. If one person earns significantly more, spousal support may be ordered. While premarital agreements can limit or waive support, a court can still order support if it finds that enforcing the waiver would be unconscionable—a legal standard meaning “grossly unfair.”

Estate Planning: The Law Has a Plan (Whether You Like It or Not)

If you pass away without a will or trust:

• Your share of community property goes to your spouse.

• Your separate property is divided between your spouse and other family members, depending on who survives you.

A premarital agreement can change those default inheritance rules too—either to give more or less to a surviving spouse.

So, Should You Get a Premarital Agreement?

Maybe. Maybe not.

Whether a premarital agreement makes sense depends on many things—one of which is how well California’s default rules align with your goals. Some couples choose to stick with the default but put it in writing to clarify expectations and reduce future conflict. Others want to make specific changes.

At a minimum, I recommend having the conversation. Understanding the default rules is the best place to start.