Courts also won’t approve terms so lopsided that one spouse is left destitute. Danger said that a judge will intervene if the terms leave someone unable to financially support themselves.
Beyond that, Matsumura drew a clear line between clauses governing marital finances and spousal behavior. “Infidelity clauses” are generally unenforceable in California, and anything governing sexual conduct is also off the table.
Pet custody is a newer gray area. Most states treat pets as property, meaning a judge would simply award the animal to one person, like a car. But California recently passed a law allowing couples to agree on shared companionship arrangements for pets: something that looks a lot like a custody schedule.
“You might drop off the dog every two weeks at a pet store parking lot, or they agree to pay for certain types of medical care for the pet,” Matsumura said. This is a small but telling sign of how the law is slowly catching up to the way couples actually think about their lives, he said.
My partner and I don’t have a lot of assets. Do we still need a pre-nup?
Probably more than you think. Even couples with similar financial situations at the time of marriage can find themselves with imbalanced assets later in life, Matsumura said.
For example, if you decide to step back from your career to provide child or parental care, “you might find that you take a hit and you’ll never fully recover,” Matsumura said. While this can be especially true for women, he said that married people of all genders may have to make tough decisions about their participation in the workforce and how it’ll affect their earning power.
Juliana Yanez pointed to “equalization clauses,” provisions that award a stay-at-home spouse additional assets or support for every year they’re out of the workforce, as a valuable tool. This could look like a person receiving 25% of their spouse’s income after 5 years of marriage, and that percentage rising to 50% after 10 years.
Yanez said building these kinds of rises gradually, noting that they’re generally more enforceable if the amount of financial support vests over time, depending on how long you’ve been married.
The New Yorker’s Wilson found that many young couples are also thinking about assets they hope to own someday — and how they’ll divide them. Among her interviewees were aspiring screenwriters who hadn’t sold a script yet, but still wanted their intellectual property protected just in case. “We’re not millionaires now,” one told her, “but we might be one day.”
Another way to think about all this, Danger said, is as peace of mind. Knowing your separate property is accounted for, she said, frees you to invest fully in building a life together — without the quiet anxiety of wondering what you’d lose if things went wrong.
What’s the right time to bring up a pre-nup, and how do I start the conversation?
Family law attorney Yanez said discussing a prenup at least six months before the wedding, noting that California law already requires a seven-day waiting period before you can sign.
Rushing this process also creates legal risk, Yanez said: not only do financial disclosures take time, but a pre-nup that feels coerced is also much harder to enforce.
As for how to start, Danger suggests thinking of it not as planning for divorce but as planning together while you still feel generous toward each other.
“If you find talking about money unromantic, then you’re going to find marriage unromantic,” Wilson said. Since money is the number one thing couples fight about, she said, having the conversation early may actually help the marriage last longer.
If a formal conversation feels like too much of a leap, Wilson suggested taking the pressure off with a card game called Fight Night, designed to help couples explore where they’re aligned — and where they’re not — before ever sitting down with a lawyer.
I’m already married. Can I still get a similar kind of protection?
Yes, you can get a postnuptial agreement.
Once you’re married, Matsumura said, spouses owe each other “fiduciary duties.” This means you and your spouse are obligated to act in each other’s best financial interests, which can complicate things legally.
But with independent legal counsel — one lawyer for each of you, even though you’re married — and genuinely fair terms, a post-nup has a good chance of holding up in court.
Danger points out another option if you already have a pre-nup in place: amend it as your circumstances change. Consider setting regular check-in dates, timed with your anniversary or another memorable milestone, to reevaluate this document as a couple.
Think of this as a tool in your marital emergency kit, Danger said: “You don’t have to turn on your lamp, but if it gets dark, it’d be good to have some light.”
My partner and I aren’t getting married, but we live together. Can we still make a legal agreement?
A landmark California case called Marvin v. Marvin established that yes, unmarried pairs living together can enter into legally binding agreements about property and financial support — even if they are not in a romantic relationship.
But as law professor Matsumura said on Forum: “If you actually go to court to litigate [a case like this], you might be disappointed.”
I’m in a non-monogamous or polyamorous relationship. Can I get a pre-nup with multiple partners?
Since marriage in the United States is legally limited to two people, the default assumption of “communal property” isn’t available to all partners in a polyamorous relationship.
