Ahh, parents. They may not know how to export to PDF, but they sure are experts on having opinions on your marriage and prenup! That’s okay, because we’re here to show you how to handle your parents’ perspectives on prenups, with California laws in mind. So, if you have parents, live in California, and are getting a prenup, then this article is for you!
Prenuptial agreements don’t have to be a scary topic. A prenup is simply a legal document that sorts out your finances should the marriage come to an end. It can help protect both yours and your spouse’s assets. Prenups can also protect you from each other’s debt and from paying alimony. A prenup is also a tool for communication to facilitate transparency in life and financial expectations. So, where do parents’ opinions come into play? Inheritances, gifts, and anything to do with the family assets. The biggest concern with your parents regarding your prenup is likely to be what happens to their hard earned money if you get a divorce. There are pros and cons to parental involvement with your prenup, which you can read more about at the link. Otherwise, let’s dig into how to handle your parents’ perspective on your prenuptial agreement.
Understand how the the laws in California work
First things first, it’s important to understand what happens when you divorce without a prenup in tow. Did you know that all states have a “default prenup” for you when you didn’t get one yourself? Yep, that’s right, the default prenup is the state laws around property division and spousal support.
California is a community property state, meaning that there is a presumption that property and debt acquired during the marriage should be split 50/50 by the court. Separate property is considered whatever property or debt you owned before the marriage, were gifted or inherited. Don’t be fooled though, separate property can get mixed up in community property pretty easily. This is known as commingling. For example, if one spouse has a Separate Property bank account prior to the marriage, and then during the marriage, takes some of that money and puts it into a joint account with their spouse, it would be an example of commingling and it may lead to turning those separate property funds into community property.
Now, let’s take a look at spousal support sans prenup. In a divorce proceeding, the assigned judge will use California law and their discretion to determine how much and how frequent spousal support should be paid. Some factors the judge may take into consideration:
- The extent to which the supported party contributed to the attainment of an education, training, career position, or license by the supporting party,
- The ability of the supporting party to pay (considering the supporting party’s earning capacity, earned and unearned income, assets, and standard of living),
- The needs of each party based on the standard of living in the marriage,
- The obligations and assets, including the separate property, of each party,
- The duration of the marriage,
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party,
- The age and health of the parties,
- All documented evidence of any domestic violence,
- The immediate and specific tax consequences to each party,
- The balance of the hardships to each party,
- The goal that the supported party shall be self-supporting within a reasonable period of time (with some exceptions),
- The criminal conviction of an abusive spouse, and
- Any other factors the court determines are just and equitable.
See Cal Fam Code 4320 for the full statute.
All of the above is what happens without a prenup. With a prenup, you have the power to determine your destiny (while saving yourself time and money!). In a California prenup, you can outline what property is meant to stay separate, that includes debts, inheritances, gifts, and more! You can also choose to limit spousal support or forego it altogether. Beware that in California, if you and your fiance plan to eliminate or modify spousal support in your prenup, the person losing out on money must be represented by an attorney.
Understand your wishes for a prenup
Now that you understand the laws in California around prenups, start thinking about what you want to do with your prenup. Do you want to keep all property owned before the marriage separate? Do you want to keep all future gifts and inheritances separate? What about the appreciation of such property?
For example, let’s say you have a very generous family, who loves doting on you and has given you lots of gifts. In fact, they even gifted you a house for graduation (before the wedding). You and your parents may be wondering what will happen to that house if a divorce were to occur. You can outline in your prenup that all property owned before the marriage is separate. In that case, the court should consider your gifted house to be separate property, not subject to division with your ex.
What about appreciation (i.e., the increase in value) of your separate property? Maybe you want to keep that gifted house separate, but you’re okay with sharing the appreciation in value of the house. Or maybe not. Thinking about appreciation is another aspect of the terms of a prenup. Do you want to share the increase in value of retirement accounts, real estate, etc? Think about it!
There’s also the conversation about future inheritances. Do you anticipate a hefty chunk of change to be passed on to you? If so, you should start thinking about whether you want to keep it your separate property. This also includes gifts. If you are a lucky one, and your parents like to give you $100,000 every year for Christmas, then you need to decide if that is separate or community property.
Prepare for the prenup talk
You should be ready for anything with this parent prenup talk. But a word to the wise: be respectful and listen to their side of things. They raised you for 18 years of your life! They might have some words of wisdom to impart on you, and it might not be a bad idea to take it in.
Be ready to talk about what will go into your prenup, namely how you plan on protecting the family wealth (or not). If you plan on protecting your family wealth, then you will want to let your parents know! You can explain to them how you will delineate those previously gifted property and future gifts or inheritances as separate property in your prenup. If you are choosing not to outline certain family assets as separate property then prepare for that
Now for the hard part: the objections, direct questions, and harsh opinions. Be ready for all of that. They will have their own take on this, especially if there are a lot of family assets lying around.
At the end of the day, this is your prenup, your marriage, and your life, so the ultimate decision is up to you. It’s always a good idea to be respectful and take advice from our elders, though, especially our parents!
Sit down with your parents and discuss
Now, it’s time. Sit down and get this conversation over with already! It’s a good idea to have this conversation at an optimal time for everyone. Meaning don’t have this conversation right after your dad’s favorite football team loses a big game or after mom had one two many Chardonnays with dinner. You and your soon-to-be-spouse should also be in a good headspace. This conversation entails money, emotions, and relationships, so it’s best for everyone to be in the perfect mindset. A good time may be after a weekend dinner party, you can pull mom and dad to the side and ask for a two-on-two conversation.
Perhaps you can open the conversation by asking for some advice. Parents love to give advice, and they may think this is their time to shine! Plus, your parents may have a prenup themselves (or not) and have knowledge and opinions on the right (or wrong) thing to do. Be open and respectful to their advice, as they likely have your best interests in mind and also want to keep their hard earned money safe. Who knows, you may be in their shoes in the next 30 years, so make sure your karma stays intact!
At the end of the day, these are your parents, so you know how to approach them best. Just relax, be respectful, and get it done.
Talking to your parents about marriage and money really isn’t that scary! First, get to know your California state laws on what happens with and without a prenup. Second, figure out what you want to put in your prenup! Are you dead set on sharing everything? Or keen on keeping it separate? Either way, you need to know this before talking to your parents! Third, do a little mental prep on the talk. You know your parents, what will be their likely responses or objections? Fourth and finally, sit down and have the talk! You may want to avoid highly emotional days or days where there is a lot of alcohol involved. Regardless, you got this! And HelloPrenup is here for you when you’re ready to get started on your prenup.
Written in content collaboration with Raymond Hekmat, Esq.
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Raymond Hekmat’s practice of law has been devoted exclusively to areas of California family law focusing on prenuptial agreements, divorce consulting and mediation, since earning his Juris Doctorate degree from Loyola Law School in 2009. During his tenure at Loyola, Raymond was President of the Evening Bar Association, and was awarded the Alumni Association Governors’ Alumni Award. While earning his degree, Raymond worked as a law clerk, and later an associate, for a Beverly Hills family law firm. Prior to founding HLM, Raymond’s practice involved complex family law litigation involving high-asset property division, complex custody litigation, jurisdictional issues, division of community estates and prenuptial agreements.