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Lack of prenuptial agreement does not guarantee loss of assets

However, many couples anticipating marriage do not execute a prenuptial agreement before the wedding. However, an individual can protect his or her assets even without a prenuptial agreement.

In a community property state like California, the pre-marital assets of each spouse are not subject to property division upon divorce. Assets acquired during the marriage, other than gifts, are considered marital property, and each spouse is generally entitled to one-half of those assets at divorce. By keeping pre-marital funds in a separate account, there is no danger of commingling, which may raise questions down the road of when the funds were acquired. A spouse can protect pre-marital real estate by keeping it in his or her name and by using non-marital funds to maintain it. Using marital funds to maintain or improve pre-marital property can create a community property interest, possibly resulting in some part of the property being subject to division.

An individual with a pre-marital retirement account should save the account statement closest to the wedding date. The court may allow that spouse to retain the pre-marital amount and divide the rest. Also, if an individual owns a business before the marriage, he or she should get a valuation close to the time of marriage. If the business increases in value, the other spouse will be entitled only to half of the increase in value, not half of the total value of the business.

Many couple do not sign a prenuptial agreement because they think it will never be needed. However, unexpected events do occur. If an individual is contemplating marriage and does not want to raise the subject of a prenuptial agreement or cannot convince the other party to sign a prenuptial agreement, the individual can still take steps to protect pre-marital assets. The individual may want to consult an attorney with experience in this area. The attorney may advise him or her regarding the steps to take to protect pre-marital assets even in the absence of a prenuptial agreement.

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