Before You Say “I Do”– What Every Bride and Groom Should Know About California Marriage Laws (part two)

In Part One of this article, I pointed out that marriage is far more than a romantic milestone. It is a legally significant contract with major financial implications. In California, a community property state, nearly everything earned or acquired during a marriage is presumed to be equally shared between spouses, with limited exceptions for gifts and inheritances.

Couples who want to deviate from these rules must do so through carefully drafted prenuptial or postnuptial agreements, which are one of the key areas I will focus on in this article.

To Prenup or Not to Prenup? That is the Question

A prenuptial agreement is a legal contract signed by two people before they marry that specifies how assets, debts, and finances will be divided if the marriage ends in divorce or death. The agreements can be used to spell out expectations and set a clear understanding between the couple. One reason couples resist prenups is that they can feel unromantic, distrustful, or like a signal that one person is trying to keep everything separate rather than build a life together. This is understandable, but in truth, prenups are simply agreements, and do not necessarily signal trouble.

Prenups make particular sense when one or both people have been married before, have children from prior relationships, own businesses, have accumulated estates, or are connected to family wealth, trusts, or expected inheritances. In those situations, a prenup can protect both existing assets and family expectations. At the same time, not every couple needs one. If two very young people have little income, few assets, no business, and no meaningful expectation of wealth, insisting on a prenup may raise more relational concerns than legal benefits.

Broaching the subject of a prenup can be uncomfortable, but that discomfort is exactly why the discussion matters. The conversation should be intimate, candid, and collaborative. The healthiest prenup conversations are not framed as “what’s mine is mine and what’s yours is yours,” but rather as a thoughtful discussion of what each person is bringing to the relationship, what needs protection, and what the couple intends to build together. Even where family wealth makes a prenup expected, how the issue is raised and discussed can determine whether it feels protective or alienating.

Here is an example of how a prenup can be important in an unexpected way. In the case of a woman whose spouse died only fourteen months after the wedding, because he had a separate-property business and estate, and because they had a prenup, she received a substantial amount on his death. Without the prenup, she would have received very little. It is an unusual but real example that illustrates a broader point: prenups are not always about planning for divorce; sometimes they create security and clarity in entirely unexpected circumstances.

The Importance of Having an Informed Legal Conversation

One of the biggest regrets I hear from clients who are going through divorce is that they did not have a fundamental legal conversation before marriage. So many post-divorce conflicts begin because couples never learned the rules in the first place. A brief, informed conversation before marriage can bring clarity to issues that become enormously expensive and emotionally charged later.

My firm belief is that it is important to go into marriage with your eyes wide open. Without a prenuptial agreement, assume that what you acquire during the marriage, other than gifts or inheritance, will be treated as joint, and assume that marriage creates support obligations. At the same time, understand the limits: child support and child custody for unborn children cannot be contracted for in a prenuptial agreement. And couples should also understand that the law is not necessarily designed to feel “fair” in the emotional sense; it is designed to create consistent rules. The real danger is not that the rules exist, but that most people never learn them until it is too late.

Marriage will always be personal, emotional, and deeply individual. But the law does not operate on romance. It operates on rules, presumptions, and documentation. That is why one of the most loving things a couple can do before marrying may also be one of the least glamorous.

Be Prepared, As Much As You Can Be

As with many religious denominations, couples should be open to pre-marital counseling and do what they can to understand the strictures of marriage. Whether with a religious or secular marriage counselor, the basic principles are the same: Ask hard questions, have honest conversations, and understand the frameworks you are stepping into together (legal, financial, familial, parental, and otherwise). The goal is not to make marriage feel transactional. It is to make sure you and your spouse enter it informed, protected, and clear-eyed about what the commitment truly means.

Please note: The content and views expressed here are my own and do not reflect or represent the positions, strategies, views, or opinions of Blank Rome LLP.