Marriage, Prenups, and Your Contract

Nobody wants to talk about divorce while they are planning a wedding. I get it. But I have watched too many players find out the hard way that the rules were set long before anybody said I do. The good news is that the rules are knowable, and a little planning protects both of you, not just the one with the contract. This is general education, not legal advice. Your state's law and your lawyer have the final word.

Two systems: community property and everyone else

Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. The basic idea is simple. What either spouse earns during the marriage belongs to both of them as a team, usually split 50/50 in a divorce (Texas and a few others let the judge divide it in a way that is "just and right," which is not always exactly half).

Five more states, Alaska, Tennessee, South Dakota, Kentucky, and Florida, are opt-in states. Couples there can choose community property treatment for certain assets by signing a written agreement or putting assets in a special community property trust. Florida's law took effect for trusts created on or after July 1, 2021. Nobody lands in this system by accident; you have to sign up.

The other states use equitable distribution. The judge divides marital property in a way that is fair, which can be 50/50, 60/40, or something else, depending on things like the length of the marriage, each person's earning power, and who gave up a career to raise kids or follow the other one from city to city.

Separate vs. marital: the basic sorting

• Usually separate (yours alone): what you owned before the wedding, plus gifts and inheritances made to you personally, even during the marriage.
• Usually marital or community: paychecks, bonuses, and endorsement money earned for work done during the marriage, and whatever you buy with that money.
• Depends on the state: income from separate property. In Texas, Idaho, Louisiana, and Wisconsin, rent, interest, and dividends from your separate property are generally community property. In California, Arizona, Nevada, New Mexico, and Washington, that income generally stays separate.
• Increases in value: if your pre-marriage house or business grows because you (or your spouse) poured marital effort or money into it, part of the growth can become marital in many states.

Timing: the date you played matters more than the date you signed

Here is the trap. A lot of players think, "I signed my deal before the wedding, so it is mine." That is usually wrong. A contract is a promise to pay you for future work. Courts generally ask when the work was done, not when the ink dried. A salary paid for games played during the marriage is marital or community income in most states, even if the contract was signed the year before.

• Salary: follows the season. Games played while married, money earned while married.
• Signing bonus: this is where it gets argued. If the bonus is really payment for future seasons, some courts look at when those seasons were played and split it that way. Others focus on when the bonus was received. State law and the contract language both matter, so the wording of your deal matters.
• Deferred compensation: money paid years later for seasons already played. Courts tend to trace it back to the seasons it pays for. If those seasons fell during the marriage, that share is marital even if the check arrives after a divorce.
• Pensions and league retirement plans: in California, the Supreme Court held in In re Marriage of Brown (1976) that even unvested pension rights are community property to the extent they were earned during the marriage. That led to what lawyers call the time rule: the community share is the fraction of the service time that happened while married.
• Stock and equity deals: in In re Marriage of Hug (1984), a California appeals court approved a time-based formula for dividing stock options granted before separation that vested after. Endorsement deals paid in equity can get the same treatment.

Commingling: how your separate money stops being separate

Say you had $500,000 saved before the wedding. Then you and your spouse deposit paychecks into that same account, pay the mortgage from it, and move money in and out for five years. Now nobody can tell which dollar is which. When you cannot trace it, many courts treat the whole pile as marital. This is called commingling, and it is the most common way players lose separate property they never meant to share.

Where you live vs. where you married

Players move a lot: college in one state, draft to another, traded to a third, offseason home in a fourth. Generally, the law of the state where you live (your domicile) when you earn the money shapes how that money is classified, and the divorce court applies its own rules to divide it. Some states, like California, treat property bought elsewhere as if it were community property if it would have been community had you lived there. If you move a lot, write your state of domicile into your planning and your prenup.

Prenups: what makes them hold up

A prenuptial agreement is a written contract about who owns what if the marriage ends. The Uniform Premarital Agreement Act (UPAA), written by the Uniform Law Commission in 1983, and its 2012 update, have been adopted in roughly 28 states plus the District of Columbia, including California, Texas, Florida, Arizona, Nevada, and Illinois. The rest of the states still allow prenups under their own laws and court decisions. The details vary, but the same basics show up everywhere:

• In writing and signed by both. Handshake deals do not count.
• Voluntary. No pressure, no "sign this or the wedding is off" the night before.
• Full financial disclosure. Both people list what they own, what they owe, and what they earn, including the contract. Under the UPAA, a court can refuse to enforce a one-sided agreement if the other person did not get fair disclosure.
• Separate lawyers for each side. Not required in every state, but it is the single best way to make the agreement stick. Pay for your partner's lawyer if you need to; it protects you.
• Time to think. California Family Code 1615 says the person being asked to sign must get the final agreement and be advised to get a lawyer at least seven calendar days before signing, and must either have independent counsel or waive it in a separate writing.
• Child support is off the table. Under the UPAA, a prenup cannot adversely affect a child's right to support. No agreement can waive it.

Already married? A postnuptial agreement does the same job after the wedding. Courts often look at postnups harder than prenups because spouses owe each other special duties of fairness, so disclosure and separate lawyers matter even more.

Before the wedding

1. 1
   Have the talk early

   Bring up a prenup months before the date, not weeks. Frame it as protecting both of you and any kids.

2. 2
   Make a list of everything

   Accounts, contract terms, bonuses, deferred pay, endorsement deals, homes, business interests, and debts. Your partner does the same.

3. 3
   Hire two lawyers

   One for each of you, both licensed in the state where you live. Family law, not a general business lawyer.

4. 4
   Follow the clock

   Get drafts exchanged early and sign well ahead of the wedding. In California, respect the seven-day rule at minimum.

5. 5
   Separate your separate money

   Keep pre-marriage savings in your own name, stop mixing, and save statements from the wedding date.

6. 6
   Update your beneficiaries

   Decide on purpose who gets your retirement plan and life insurance. A new spouse may have legal rights to some of it anyway, so ask your lawyer.