Ask Me Help Desk - Prenup in Common Law vs Community Property State

Quote:

Originally Posted by jimbo999

I am planning on getting married and want to do a prenuptial agreement. We haven’t totally decided where to live but it would be in either Washington or Oregon. With respect to a prenuptial and preserving what assets I have before marriage in the event of divorce, would it be more advantageous to be married and live in Oregon (common law) or Washington (community property). My preference is actually Washington. Would a properly executed prenuptial agreement be just as strong in Washington as in Oregon? Or would the difference be negligible.

Thank you

Well, I don't know if you know it, but in community property states like California and Washington, property you own before marriage remains your separate property as a matter of law--you don't need a prenuptial for that (but I know people make that part of a prenup all the time). Your property doesn't become magically converted to community property just because you get married.

To my knowledge all states recognize premarital agreements but differ only in the formalities associated with putting them together. If you want to alter your property rights before marriage, that's fine and as a general rule you can pick what aspects of the law you like and want and those you don't but be careful since some states have certain formalities (for example, in California you cannot waive spousal support unless the party against whom the waiver is sought was represented by an attorney in the prenup negotiation).

I doubt very much it matters which state you live in after marriage. But it would not be a bad idea to put a venue clause in the prenup stating which law will apply to the interpretation and application of the agreement in the event of divorce.