Why, and When, Should We Create a Collaborative Pre-marital Agreement (“Pre-Nup”)
April 18, 2017

When couples marry in California, there are laws that automatically apply to their assets and income. For instance, income received as a result of either spouse’s labor, skill and efforts is community property and belongs to the marital partnership. Assets owned prior to marriage or received during marriage as a gift or inheritance is separate property unless it increases in value during the marriage due to either spouse’s efforts.

These default rules can be changed in a premarital agreement. The process for creating such a contract is an important consideration. The relationship needs to be valued and the communication about financial topics facilitated to encourage open and heart felt discussions about the terms to be included. Instead of having a proposed premarital agreement prepared by one client’s attorney and delivered to the other client, in a collaborative process the couples and both attorneys work together to develop a Premarital Agreement. The process should be commenced well before the intended wedding date to assure the topics can be considered thoughtfully without any pressure related to timing.

Collaborative practitioners begin the premarital agreement process with a meeting between the prospective spouses and drafting attorneys where we learn together about the clients’ personal and professional backgrounds, as well as their goals for their marriage as a couple and as individuals. Full disclosure of all assets, obligations and income is required regardless of process. During the meeting, we review each person’s financial information and ask questions to ensure understanding. A review of what California law provides is given so those rights and responsibilities are known. Then we identify topics to be included in the document and brainstorm options for solutions. After all possible options are identified, each is evaluated to determine viability and connection to the clients’ marital goals and interests. If consensus about the terms is reached, the attorneys will then prepare a draft agreement for review. If the couple needs time to further reflect on the options together, another meeting is scheduled to hear the results of this conversation. After the draft is read by all, there is a final discussion to confirm the document is understood and consistent with the couple’s intent.

Susan Stephens Coats is certified as a Specialist in Family Law by the State Bar of California Board of Legal Specialization. http://www.collaborativepracticemarin.org/members/Coats

Photo Credit: Ann Buscho, Ph.D.