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Prenuptial Agreements


If you are getting married, you may be thinking about whether or not you should get a prenuptial agreement. A prenuptial agreement (or prenup) is a legal agreement that parties sign before they are married. Its primary purpose is to set forth the spousal support and/or division of property in the event of divorce or death.

Without a prenup, the laws of the state will determine how marital property is divided at divorce. Generally, in California, if you divorce without a prenuptial agreement, spousal support is set based upon the income of the parties and the marital standard of living. Property acquired during the marriage is divided equally between the parties. However, through a prenuptial agreement, you and your spouse can override California law and together decide the amount and duration of spousal support and which property will be divided and how that property will be divided.

No one goes into their marriage thinking that they are going to get a divorce and bringing up the topic of a prenup to your future spouse can be stressful. Despite this, more and more couples every day are deciding to enter prenups, because of the value that they can provide. 


  • Even when couples enter marriage with the best of intentions, people can change, and divorce can happen. A prenuptial agreement can help provide certainty in the event of divorce. If you get divorced without a prenup, the court will resolve all disputes regarding spousal support and the distribution of property. Until the judge's order is handed down, you will not know what is going to be yours and what is going to be your former partner's. A prenup can eliminate this uncertainty. You and your spouse, not the court, have control of the process.
  • A prenup allows you and your spouse to make decisions at a time when you are getting along and in harmony. Entering into an agreement before there is resentment and hurt feelings will lessen the contention and fighting during the divorce. A contested divorce will result in a lengthy court battle. By entering a prenup, you can help avoid the stress and cost that an ugly divorce can cause.
  • A prenuptial agreement can help you protect family heirlooms or property with sentimental value that far outweighs its actual value. If you divorce without a prenup, California law states that property acquired during marriage is divided 50/50. Through a prenup, you can ensure that certain sentimental property will not be subject to division.
  • You can protect the inheritance rights of children and grandchildren from a previous marriage through a prenuptial agreement. Without a prenup, the surviving spouse from the second marriage may have a right a claim a large portion of the estate leaving little for the children from a prior marriage.
  • If you own a business, a prenuptial agreement can protect your business interest, so it is not subject to division in the case of a divorce. Valuing and dividing a business in a divorce can be complicated, but by designating it as separate property in a prenup this complication may be avoided.
  • If one spouse has a substantial amount of debt, a prenuptial agreement can protect the other party from having to take on that individual's debt. When you get divorced, both property and debt are divided. You may not want to be saddled with your spouse's credit card or student loan debt.
  • In addition to the division of property, you and your partner can agree on the amount spousal support amount in a prenup. Spousal support is especially relevant if one spouse earns significantly more than another
  • If you are coming into the marriage with substantial wealth and or an established career, a prenup can help protect your financial interests.
  • Even if you stay happily married, creating a prenuptial agreement has value. Going through the steps of drafting a prenup forces partners to closely examine their financial future together. This process can give couples the opportunity to completely disclose their financial situations and ensure that they are going into marriage with their eyes open. It can be the first step in a dialogue about finances that can continue throughout your marriage.


If you have questions about prenuptial agreements, you should contact the experienced attorneys at The Moreno Family Law Firm. The attorneys at The Moreno Family Law have over 30 years of experience helping residents of San Jose draft prenuptial agreements. Call Moreno Family Law Firm today at 408-266-9011 for a consultation.