What Happens If I Don’t Have a Prenuptial Agreement in California?

Obviously, not everyone who gets married in California has a prenuptial agreement, and so, with all of the planning you might be making in the months leading up to your wedding date, it can be easy to skip over thinking about the possibility of obtaining a prenuptial agreement. But what really happens if you get married without having a prenuptial agreement?

Some things won’t be affected by not having one. With or without one, each spouse has the legal duty under California law to provide economic support to the other spouse, regardless of whether an agreement is in place. Similarly, if you decide to seek a divorce one day and you have children, you will have to work out an arrangement for child custody and child support (or have a court impose such arrangements on you), and a prenuptial agreement cannot dictate those terms beforehand. But here are a few aspects of divorce that will be true without a prenuptial agreement in place.

Your Spouse Will Be Entitled to Half the Property Earned/Acquired During Marriage

California divorce law employs the concept of community property, which basically says that most all property earned or acquired during the marriage by either spouse will be considered community property which belongs to both spouses. In a divorce, such property will be split 50/50 between the spouses, again, totally irrespective of which spouse put in the effort to earn and/or acquire the property.

There are a number of complications and nuances to this rule - for example, a business that was owned by one spouse prior to the marriage but which grew in value due to that spouse’s efforts will be considered only partially community property - but, in general, the community property concept can be a rude awakening for many divorcing spouses.

With a prenuptial agreement, however, the spouses can decide before the marriage how they would like each of their earnings and other acquired property to be treated both during the marriage and after the divorce.

Either Spouse Can Demand Ongoing Spousal Support During and After the Divorce

In addition to splitting community property 50/50, many spouses will find in a divorce that they are required to provide additional property to their ex-spouse on an ongoing basis via spousal support, or alimony as it is often called. Both husbands and wives as well as those in same-sex marriages can be ordered to pay spousal support.

Spousal support is often awarded to one spouse to be paid by the other spouse on a monthly or bi-monthly basis for years on end, often half the length of the marriage or longer. These payments can easily reach into the tens of thousands of dollars over time, and can dwarf the amount of property split via community property, especially for younger couples where there are high earnings but little savings.

It is extremely difficult to predict exactly how much spousal support a judge might award in a divorce, and they have enormous latitude in what they can award.

With a prenuptial agreement, the spouses can waive their rights to spousal support or agree to a predetermined amount (e.g. $2,500 a month for two years) at the time of the prenuptial agreement.

Your Divorce Will Have to Be Negotiated And/Or Decided By a Judge at Trial

With a valid, enforceable prenuptial agreement, you can in many cases simply submit a settlement agreement to a judge reflecting the terms of your prenuptial agreement, and the judge will finalize the divorce in light of the agreement (and the other spouse will be unable to successfully argue against enforcement of the agreement).

Without a prenuptial agreement, however, you and your spouse will either need to come to an agreement on all of the above issues - chiefly property distribution and spousal support - that you did not address with a prenuptial agreement, but now you will have to do them at a time when tensions may be very high and agreement difficult. If you cannot agree, you will need to go to a divorce trial, where attorneys will litigate these issues before a judge. By creating a prenuptial agreement, you can avoid this often costly and contentious outcome.

Get Answers to Your California Prenuptial Agreement Questions

To schedule a consultation regarding any questions about prenuptial agreements, contact one of the family law attorneys at Kearney Baker today at 626-768-2945.