Summerall Law, P.C
3873 Piedmont Avenue Suite 8
3871 Piedmont Ave #57 (mail)
Oakland, California 94611
[email protected]
(415)944-9406
(415)548-2041
PREMARITAL & POSTMARITAL AGREEMENTS
Please feel free to leave any section blank, and we will discuss it in further detail in our meeting. The
boxes should check when they are selected with the mouse or highlighted and the space is hit. If this
does not work, type or otherwise indicate yes or no. Feel free to add your own notes or questions.
Process. Generally, I will draft the document, and the other attorney will review the document, explain
the legal affects to your partner, and respond with any changes. There is a presumption that the
AGREEMENT WILL NOT BE ENFORCEABLE under California law if the OTHER PARTY IS
NOT REPRESENTED.
Financial Disclosures. It is required that when you sign an agreement that each party makes a “knowing
and voluntary agreement.” This means that you understand the nature and extent of each other’s property
and debts. Please list in the final section all assets and debts of each party.
Client Information:
Future Spouse Information:
Wedding or
Marriage Date:
Name:
Intake Date:
Spouse Name:
Phone:
Phone:
Employer:
Employer:
Age:
Age:
Address:
Address:
Yearly Income:
Yearly Income:
Other Types of
Income:
Health:
Other types of
Income:
Health:
Email:
Partner Email:
Prior Marriage?
Prior Marriage?
If yes, Date and
County of
Divorce:
Children from
Prior Marriage
(name and age):
Children from
this relationship:
If yes, Date and
County of
Divorce:
Children from
Prior Marriage
(name and age):
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COMMUNITY PROPERTY VS. SEPARATE PROPERTY
General Rules in California. Without a premarital agreement, the state default rules for how to divide
property will apply. California is a community property state. Under community property rules, the
separate property of each spouse is awarded to the owning spouse and each person gets one/half of the
community property. The basic rules are outlined on the chart below.
SEPARATE PROPERTY
COMMUNITY PROPERTY
Separate property & debt is what you own or were
liable for before you get married.
Community property & debt is what earn or
purchase during your marriage.

Cars, real property, funds in bank accounts and
retirement accounts owned prior to marriage
are separate property.


Credit cards, car loans, and other debt acquired
before marriage.


Student loans are generally considered separate
property even after marriage.

*Gifts and inheritances are Separate Property
NO MATTER WHEN they are inherited.

After you get married, funds you contribute
toward owning a car, your retirement,
payments on mortgages, are community
property.
Credit cards, mortgages, and car loans started
after marriage are community debts (even if
they are in one spouse's name) are generally
community debts (unless you can show to the
judge the debt was not incurred for the benefit
of the marriage).
Contributions made from the community to
student loans or training of one party may be
reimbursable after dissolution.
Changing the Rules. You can change most of these rules by contracting around what is best for your
relationship. I recommend that you go through the entire form, even if the defaults sound reasonable for
your situation, as there are issues around spousal support and debts that I recommended are addressed in
each relationship. If you are not sure what you would prefer, mark you want to “discuss in office.”
INCOME
Income Earned During the Marriage. The default rule is the money earned during the marriage is
community property and will be split equally upon dissolution. Some couples prefer to keep funds
mostly separate, possibly with the exception of a joint bank account.
Rules for your Relationship:
☐ Income earned during the marriage is community property.
☐ Income earned during the marriage is separate (with the possible exception of a joint bank
account).
☐ Discuss
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Joint Bank Accounts. It is common to have at least one joint bank account for shared purchases. I
generally include a clause that says any amount deposited into a joint bank account will be considered
community property and there will no right to reimbursement for either party to simplify the sharing of
life expenses.
Rules for your Relationship:
☐ We plan on using a joint bank account[s], and any amount deposited will be a gift of the
community.
☐ We are not going to use a joint bank account; all property remains separate.
☐ Let’s discuss in office.
RETIREMENT ACCOUNTS
Retirement Accounts. The default rule is that all income earned prior to the marriage is considered
separate property (including deferred compensation in retirement accounts). Income earned during the
marriage, including retirement accounts is to be divided 50/50. Some couples have a “saver” and a
“spender” so even though they generally want to share, they would like retirement accounts to be
separate.
Rules for your Relationship:
☐ Default Rules (split 50/50) ☐ We want to keep retirement accounts separate.
BUSINESS INTERESTS
Section 1.01
Default Rule. Business interests acquired during the marriage are divisible upon divorce.
This includes business property, stock options, dividends, future income of the business, and the “good
will” (potential future income) of the business. No one wins when the parties try to separate a business on
divorce. Here are some of the reasons why:
a) Dividing the Business Assets May Cause the Business to Fail. Often, one spouse cannot
afford to payout the other spouse, and the parties are forced to sell the business and t ake
what they can get for the pieces. If the business stays together, the owning party may also
feel a reduced sense of job satisfaction, which can negatively affect employees, children,
and the overall financial stability of the family.
b) Evaluating the Value of a Business Is Speculative. In evaluating a business, the value of the
business is almost always speculative, and costly to prove for both parties.
c) One Party has Control. The party who has the business is in control of what income they
are claiming, how hard, they work, and how much effort they put into making the business
grow. This can unfairly affect the amount of spousal support or child support due.
Rules for your Relationship:
☐ Business Assets during marriage are Community Property
☐ All business assets remain separate, including income
☐ All business assets remain separate, including income is considered community property.
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☐ For larger, more established business. The non-owning party will have a right to financial payout
of any of the following 1) a percentage of the income for the last five years for the next five years 2) a
percentage of the stock 3) a lump sum payout based on the assets of the business 4) any other option
that does not require guesswork, speculation, or the breaking apart of a functioning business. This
usually requires some discussion and brainstorming based on individual circumstances.
☐ Let’s discuss other option in office
HOUSES AND REAL PROPERTY
Section 1.02
Real Property Purchased Prior to the Marriage. If real property is owned prior to the
marriage the default rules are as follows:


If only one party is on the deed. If the house was purchased prior to marriage and only one
person is on the deed, the person who purchased the home will be entitled to the value of the
property prior to marriage with a deduction, payable to the other party, for the portion of the
property that was paid off during the marriage. 1
If both parties are on the deed. If at some point during the marriage, the other spouse is
added to the deed, the presumption at law is that the property is now community property.
On division of the property, the increase in the equity of the property during the course of
the marriage will be divided.
Rules for your Relationship:
☐ Default Rule, who is on the deed will control, and parties may be entitled to reimbursements
☐ Keep property acquired before the marriage separate property regardless of title change
For Property Acquired During the Marriage:
☐ Equity is jointly owned and each party has a right to reimbursement from any separate property
contributions towards the down-payment.
☐ Jointly owned with the ratio of ownership interests equal to the ratio of their initial
purchase contributions from the community and the separate property source(s).
☐ Let’s Discuss in Office.
DEBTS
Default rule. All debts incurred during the marriage are the joint obligation of both parties. This means if
one party cannot pay, the other party is liable for the entire amount.
(i) Exception, Student Loan Debt: Student loan debt is the responsibility of the spouse taking
the debt. If the other spouse supports the party receiving the education, they are entitled
to reimbursements for the amount they contributed toward books, fees, and tuition (not
housing and board) as long as they have not already benefitted from the education (usually
meaning the debt was incurred ten years ago or longer).
Proposed Rule. All debts taken in one party’s name, are the individual responsibility of the person
taking that debt. I have seen clients who have healthy marriages have this rule financially disadvantage
both parties. If not waived prior to incurring the debt, there is nothing you can do (including getting
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divorced and having the other party agree that it is only their debt). Examples of this rule becoming an
issue:
(ii)
(iii)
(iv)
(v)
(vi)
Car accidents with judgments in excess of insurance
Unforeseen tax liabilities caused by a bad CPA.
Employment lawsuits
Gambling problems
Shopping addictions in later age
Rules for your Relationship:
☐ Default Rule (all debts acquired during the marriage are community debts).
☐ All debts acquired during the marriage individually are individual debts (joint debts, taken
in both parties’ names are considered community debts),
☐ Let’s Discuss in Office.
Student Loan Issue (if it applies to your situation):
Question 1: Payments from Community Property
☐ Payments made toward student loans from community property will be a gift
☐ Payments made toward student loans from community property will have a right to
reimbursement
Question 2: Payments made from Separate Property
☐ Payments made toward student loans from separate property will have a right to
reimbursement
☐ Payments made toward student loans from separate property will be considered a gift.
REIMBURSEMENTS
Right to Reimbursement for Separate Property used for the Community or Vice Versa. This section is
looking at what you want to do if one person has a separate asset, and the community supports that asset
in some way, either by paying down the loan or making improvements to the property. If you do not
have separate property, please skip this section. Unless modified the rules are:
(a) Separate Property used to pay for Community Property – Gift to Community. Generally, there is
not a right to reimbursement for a party who pays for community debts (tax debts, credit cards,
etc). These payments are considered a gift to the community. Exceptions:
(i) Principle and Improvements on Real Property from Separate Property. If separate
property funds are used to pay for payments that reduce the principle or for improvements
to the separate property of the other spouse, then there is a RIGHT TO
REIMBURSEMENT (unless documented otherwise); meaning the payer gets the money
back when the asset is divided.
(ii) Not included: Payments used for MAINTENANCE, INSURANCE AND UPKEEP or to
pay the interest on the loan and I recommend limiting reimbursements to amounts over
$2,000 in order to keep record keeping to a minimum.
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(b) Separate Property used to Pay Separate Debts. If one party pays for the separate debts of the
other party, there is a presumption that they are entitled to a reimbursement unless otherwise
specified in writing.
Rules for your Relationship:
Community Property to Separate Property. Contributions towards the separate property or obligations of
one party from the community property account(s):
☐ Create a Right to Reimbursement ☒ Be Deemed a Gift
Separate Property to Community Property. Contributions towards community property from the
separate property of either party shall:
☐ Create a Right to Reimbursement ☐ Be Deemed a Gift
Separate Property towards Separate Property. Contributions towards separate property or debts of one
party from the separate property of the other party shall:
☐ Create a Right to Reimbursement ☐ Be Deemed a Gift
I recommend that in all cases there is a reimbursement for contributions toward real property in
excess of $2,000.
SPOUSAL SUPPORT
Cannot be Changed after Marriage. If you are already married, you can skip this section. Spousal
support cannot be waived after marriage.
Default Rule (what happens if you do not add anything to the agreement):


Amount = 40% (of higher earners income) - 50% (of lower earner' income). There are a
number of factors that may decrease or increase the amount of support ordered, however,
this is a good guideline for understanding the basics.
Duration = 1/2 the length of the marriage, unless it is a marriage of 10 years or longer, and
then the amount of support and duration is in the court discretion.
Proposed Rule. I often recommend the following to account for modern families because 1) it helps in
putting together a quick settlement in the case of divorce 2) neither party is totally crippled by the duty to
support the other 3) each party has a clear understanding of what to expect.


Spousal Support = 40% (of higher earners income) - 50% (of lower earner' income), BUT
NOT TO EXCEED 20% of the higher earners income.
Duration = 1/2 the length of the marriage, BUT NOT TO EXCEED A TOTAL OF FIVE
YEARS, and NO JUDICIAL DISCRETION to use a different calculation for support or to
order support.
Rules for your Relationship:
☐ Default Rule
☐ No Spousal Support
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☐ Proposed Rule
☐ Let’s Discuss in Office
WHAT HAPPENS IF ONE PERSON PASSES AWAY
Default Rule. The community property and between 1/3 and 1/2 of the separate property will pass to the
surviving spouse (depending on the number of children).
Proposed Rule. If you are limiting community property and keeping most property separate, I
recommend including a clause that says that you can gift your share of the community and separate
property to anyone you want, but if the party does not have a will or trust in place, then a larger portion of
the separate property goes to your spouse.
Rules for your Relationship:
☐ Default Rule
☐ Some portion will pass automatically to the surviving spouse. _____%
☐ Let’s Discuss in Office
PREMARITAL RIGHTS IN PROPERTY
Waiver of Prior Claim. If you and your future spouse are living together in a property you own, or either
spouse has helped contribute to the maintenance of a property that one spouse owns, the other may have a
claim to that property. I generally recommend that this potential claim is waived and the other
agreements regarding real property be the only claim to real property.
Rules for your Relationship:
☐ Waive Any Other Real Property Claim
☐ No Potential Claims ☐ Discuss
ADDITIONAL INFORMATION
Time Before Signing. I recommend that each party have a final copy of the agreement for 7 full
calendar days before signing (7 days after receipt, the parties may sign). Further, I recommend that
there be 7 calendar days before the wedding. Please plan on signing at least 16 days prior to the
wedding date. If you are already married, I recommend the other party have the agreement for
seven calendar days before it is signed.
Child Support. Child support is based on income and time spent with each parent. If the parents
make about the same amount and split custody, neither party will likely owe child support. If the
higher earning party does not have more than 30% custodial time, they will likely pay 25% -35% of
their income in child support. You cannot change child support in a premarital agreement.
Billing Practices. I bill at the rate of $300 per hour. I charge a minimum of five hours (1,500) and
if you fill in this form along with the property exhibits, I usually will be able to keep the total bill to
the minimum. For ARAG clients, I do accept ARAG which generally provides a paid -in-full
benefit, or up to eight hours of attorney time. Hyatt plans generally have a paid in full benefit.
ADDITIONAL CONCERNS
Please describe any additional issues you would like to discuss:
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YOUR ASSETS AND DEBTS
REAL PROPERTY
Property Address
Approximate Value
RETIREMENT ACCOUNTS AND ANNUITIES
Financial Institution
Type of Account
Approximate Value
Type of Interest
Approximate Value
Type of Interest
Approximate Value
LIFE INSURANCE
Name of Company
BUSINESS INTERESTS
Name of Company
MUTUAL FUNDS, MONEY MARKET ACCOUNTS
Financial Institution
Type of Account
Approximate Balance
Type of Account
Approximate Balance
BANK ACCOUNTS
Financial Institution
CARS AND OTHER PERSONAL PROPERTY
Type of Property
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Description
Approximate Value
DEBT
Financial Institution
Type of Debt
Amount Due
YOUR PARTNER’S ASSETS & DEBTS
REAL PROPERTY
Property Address
Approximate Value
RETIREMENT ACCOUNTS AND ANNUITIES
Financial Institution
Type of Account
Approximate Value
Type of Interest
Approximate Value
Type of Interest
Approximate Value
LIFE INSURANCE
Name of Company
BUSINESS INTERESTS
Name of Company
MUTUAL FUNDS, MONEY MARKET ACCOUNTS
Financial Institution
Type of Account
Approximate Balance
Type of Account
Approximate Balance
BANK ACCOUNTS
Financial Institution
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CARS AND OTHER PERSONAL PROPERTY
Type of Property
Description
Approximate Value
Type of Debt
Amount Due
DEBT
Financial Institution
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