People sometimes (incorrectly) believe a “Quitclaim Deed” is enough to disclaim one spouse’s interest to another (example: Spouse 1 signs a quitclaim saying House is Spouse 2’s separate property). When dividing property at the time of divorce however, what we look at is the source of funds used to purchase the home and/or to make the monthly mortgage payments. If the community made the mortgage payments and the intent of the parties in signing that Quitclaim Deed is not clear, then the community acquires an interest in that property. That interest is then subject to division and reallocation at the time of divorce.

Consider an Interspousal Grant Deed instead, if your intent is to relinquish all interest in the property you are transferring to your spouse. The main difference between an interspousal transfer deed and a quitclaimdeed is that, when using a quitclaim, the spouse who is giving up their interest in the shared property may still be liable for the mortgage or other debts associated with the property. Always keep in mind however, that the bank – the mortgage holder – looks to whose name is on that loan. The bank is not a party to your prenup or impacted by whose name is on title when someone defaults on that loan. To be safe, to fully transfer a property from one spouse to the other, especially in the event of a divorce, the loan will need to be refinanced to include the right name on the debt.

An interspousal transfer gives full interest in the property to the transferee, whereas a quitclaim leaves the transferor still liable for any obligations related to the property, even though the transferor no longer has a residential interest in it.

I had a prenup “booth” at a bridal show recently and a bride-to-be’s mom snickered at me as she walked by and muttered under her breath that my presence at the bridal show was cynical. It’s a common misconception about prenups that having one is like thinking about divorce before you are even married yet. Couples often feel fearful of the prospect of raising the issue of a prenup before marriage and worry that broaching the subject with their fiancée will be taken as an insult or as a lack of trust. I get it. Honestly, it’s perfectly normal and common to think this way. This way of thinking however, is based on a lack of understanding of all the purposes and benefits of having a prenuptial agreement. Instead, the couple should know that protection of preexisting personal assets and protecting assets to be acquired in the future can have many advantages for both partners. A great example is keeping assets beyond the reach of creditors. There are quite a few more really good reasons to have a prenup that go far beyond “in preparation for divorce.”

View the prenuptial agreement with logic and not emotion. Love (emotion) may have inspired your decision to get married. But the act of legal marriage should also be part logical, since contracts are involved (Yes, marriage is a contract). A “prenup” is simply a natural extension of the marriage contract. It should not and does not imply that you love someone more or less. Distrustful parties may want to explore whether or not they should be getting married in the first place. (Yes, I know, that sounded cynical).

Prenuptial Agreements are tools to structure, classify, and control assets, which are particularly useful in California. In California, everything acquired during the marriage (including debt) is by default “Community Property.” AND, any contributions made during the marriage to the assets in existence prior to marriage, gives the community a monetary interest in those assets. For example, one party purchased a home before the date of marriage. It’s that party’s separate property. However, if mortgage payments are made during the marriage, the community will acquire an interest in that piece of separate property Prenuptials can also help reduce both yours and your spouse’s exposure to creditor liability if you bring existing debt to the marriage. Or, what if you are a business owner who, for whatever reason, defaults on a business loan. (think COVID …) Although you (or your business) are the only one that personally guarantees a loan, the Creditor may still go after your spouse’s assets as you have a community property interest in his/her assets.

Prenuptials can still provide terms in cases of divorce or milestones in the marriage and can also provide incentives to stay married. For example, your prenup can include a sliding scale: the longer the marriage, the more property your spouse will share in the entire estate. In the case of divorce, certain assets can already be agreed upon to be shared or divided. Otherwise, prenups can provide for separation of both assets and debts during marriage to protect against creditors. Or the prenup can include a “sunset” clause. i.e. that prenup automatically terminates after the parties have remained married for a certain number of years.

The details in a prenup are often an important record of what the marital assets are and what the individual assets are. Any couple who enters into a marriage with significant assets of their own – such as previously bought real estate, inherited money, education savings accounts, or a business – should spell out how these assets were acquired and what will be done with them during the marriage (not just what should be done in the event of a divorce). A prenup is always a good idea with respect to conscientious money management. In the same manner as one would plan for a vacation, your future child’s college fund, or your retirement savings– prenuptial agreements fall under the category of “planning for the future.”