Legal Question in Family Law in California
My daughter is a California resident. She went through a divorce about five years ago and is now close to getting married to a male California resident. Her prospective husband went through a divorce and I suspect he has little personal wealth, that is assets. He does not own a home and my guess is that he probably does not have much in the way of savings and/or retirement accounts. My daughter, on the other hand, owns a townhome (in her name only) and also has six figure 401 K savings accounts.
My concern is about the potential need for her to get a prenuptial agreement to protect the assets she owns prior to going into this new marriage. If she does get married and if heaven forbid another divorce comes along, would her second ex-husband have any claims on the assets she owned prior to this second marriage (in particular the townhome and her retirement savings)?
1 Answer from Attorneys
Whether he would have a claim depends on what they do after they are married. Earnings during a marriage are community property. Savings, a townhome and other assets acquired before the marriage remain separate property. The issues arise when they are comingled. If she has a mortgage on the townhouse and makes payments during the marriage, the marital community acquires a right of reimbursement in the event of divorce. How much that reimbursement is and how it is calculated is a bit complicated, but it is not dollar-for-dollar, because the portion applied to interest is considered an expense, not acquisition of the asset. Over enough years, however, the reimbursement can become substantial. The 401k is a similar situation. The earnings that go into it after the marriage and the gains on them are community property and would have to be divided in case of divorce. The portion in the account before the marriage would remain her separate property.
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