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Why You Might Consider a PreNup or Cohabitation Agreement

kelly-bennettby Kelly Bennett 


You’ve made it through the divorce process, and for the first time in a while, things are looking up.  Maybe you’ve started a new business, or you’ve made significant career advances.  Perhaps you’ve finally finished paying off your last child or spousal support obligation, and financial recovery is on the horizon.  Along with new beginnings come new relationships.  These can be exciting, but when they turn from casual fun to serious commitment, you may find anxiety riding on the coattails of your happiness.


The downside to post-divorce relationships is that they have a higher failure rate than first marriages, and the odds are against you for second, third and fourth endeavors.  Pre-nuptial agreements are contracts made before marriage, outlining how a couple’s financial affairs will be handled during the marriage, and how assets will be divided in the event of a divorce.  Pre-nups are no longer just for billionaires and celebrities.  A pre-nuptial agreement may be something to think about, especially when:


  • You or your partner earns significantly more than the other;
  • You own your own business;
  • You have significant pre-marital assets (real estate, pensions, investments, etc.);
  • You have children from prior relationships;
  • You expect to receive a large inheritance;
  • Your fiancé has had multiple former marriages;
  • You have a brand name in your industry;
  • You have a high likelihood of future success.


Many people are afraid to bring up the issue of a pre-nuptial agreement to their significant other.  Here, timing is everything.  Try not to wait a week before the wedding to bring it up!  In fact, if your relationship is moving into the serious zone, before anyone starts talking about fantasy weddings and dreamy honeymoons, make your monetary expectations clear early on.  Some people think pre-nups are “unromantic” and indicate a lack of trust.  To the contrary, talking about a pre-nup before or at the time of engagement actually opens up candid dialogue about each other’s expectations and critical views on money management.  Where one spouse intends to be a “work-at-home” spouse, a pre-nup can actually define the value of the stay-home spouse’s work, and provide for compensation to that spouse should the marriage terminate.  Pre-nups also require full financial transparency by disclosure of all assets and debts between the parties.  That takes a lot of trust – particularly if you’re a very private individual!


In our practice, we often see older people after divorce decide to live together instead of embarking on a second or third marriage.  Regardless of the reasons you may decide to co-habitate, like a pre-nup, a written cohabitation agreement is the smart way to go.  California does not recognize “common law marriages” (the old concept that if you live together long enough, eventually you’ll be considered married in the eyes of the law).  Cohabitation agreements in California are governed by state contract law and may give rise to other rights in the civil courts.  If drafted properly, cohabitation agreements are enforceable like any other written contract.  Many people will live together, split, and allege oral contracts regarding property and entitlement to support.  Oral contracts are tough to prove, and the better tool is a written agreement where all expectations are spelled out in black and white, and where it is clearly stated that there shall be no other agreements or changes, unless put in writing and signed by the parties.  


Kelly Bennett is with Bennett & Bennett, APC located at 27368 Via Industria, Suite 112, in Temecula. She may be reached at (951) 719-3456 –