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Law Offices of John A. Guthrie - Family Law Attorney

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Deciding whether to get a prenuptial agreement

Since California is a community property state, people that get a divorce there may be required to split their marital property equally if they do not have a prenuptial agreement. Some individuals may feel that getting a prenup means they are preparing to divorce before they are even married, but there are certain situations in which this document can protect a person’s assets in case he or she gets divorced, or his or her spouse dies.

For example, if a person owns part of a family business, he or she might not want it to go to his or her spouse even if the marriage ends with a death instead of divorce. A prenup can protect other assets that a person brings into a marriage as well. If one or both spouses are in debt at the time of the marriage, the prenup can help keep the debts separate in a divorce.

A prenup can provide important protections to a business owner. It can prevent someone from having to split his or her business with an ex-spouse. Other complex assets, such as investments and real estate, also can be protected with a prenup. Finally, a prenup can protect assets against state laws should one or both members of a couple move after divorcing. For example, a couple married in a noncommunity-property state that divorces in California might be subject to that state’s community property laws.

Having a prenup in place does not necessarily equate to an airtight guarantee that a spouse won’t challenge it during a divorce. For example, if a person did not get adequate legal counsel or was coerced, the prenup could be thrown out. If a couple must divide property without a prenup, it is still possible they might be flexible in negotiating the terms. For example, rather than dividing a particular asset 50/50, one person might take the asset while another takes one of equal value.

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