As you prepare for marriage, you are probably thinking about everything but a prenuptial agreement. However, even people in rock-solid relationships sometimes choose to sign a prenuptial agreement or prenup. Every state, including California, has prenup laws. In this guide, we review what you need to know about creating a prenuptial agreement in California.
The Uniform Premarital Agreement Act (UPAA) has applied to California prenups since 1986. In general, this law states that written prenuptial agreements signed by both parties, in contemplation of marriage will automatically become effective once the couple marries. An agreement can cover a couple’s present and future property rights, as well as other matters related to the marriage, but it can’t negatively affect a child’s right to child support or take away a court’s power to control child custody and visitation after marriage.
Principles of general contract law also apply to prenuptial agreements. Agreements require valid consent, meaning that a person must have the mental ability to consent, and that consent cannot be the result of fraud, inappropriate influence, or mistake.
Amendments to the UPAA that apply to California prenuptial agreements made after 2002 state that agreements will be enforced against a spouse only if that spouse:
- Received complete information about the other spouse’s property and finances prior to signing the agreement
- Had at least 7 days between first receiving the agreement and signing it (to allow enough time to have an attorney review the agreement), and
- Was represented by a separate attorney when signing the agreement, unless the spouse:
- Received full information in writing about the terms and basic effect of the agreement, including any rights and obligations the agreement would nullify, and
- Signed a separate document acknowledging receipt of such information, identifying the person who provided the information, and expressly waiving the right to an attorney.
Even if all of the above requirements are satisfied, if the spouse did not employ an independent attorney, any provision in the agreement affecting rights to future spousal support (alimony) will not be enforceable.
Do You Need a Prenuptial Agreement?
Just because you choose to get a prenup does not mean that you think the relationship will end. It simply means that you understand that some things can happen and that you do not want to be unprepared.
Even if your relationship is stable now, you may want to consider getting a prenuptial agreement. Each couple will have different reasons that they want to sign a prenup. People who should consider a prenup are those with assets before marriage, single parents, business owners, grandparents and business professionals. Additionally, if one or both has debt, they may want to sign a prenup to protect the other in case of their early demise.
If the couple were to divorce in the future, it could be helpful to agree that the two would want to protect each other financially. A prenup can help to prevent extensive court proceedings and promote early and open communication between the couple.
What a prenup can and cannot include?
According to the UPAA, a prenuptial contract may address many different rights and matters regarding marital property. These matters include the rights to buy, sell or otherwise use a piece of property; the division of property upon divorce or death; the making of a will or trust; ownership rights to death benefits from life insurance policies; and which laws will govern the creation of the prenup. The courts will not enforce illegal terms in a prenuptial agreement.
- Anything regarding child custody or child support.
- Spousal maintenance requirements, if the signing spouse opted not to receive independent legal counsel before signing.
- Any requirements for one spouse to commit illegal acts.
- Unfair, unjust, exploitive or deceptive terms.
- Non-financial requirements, such as demanding a spouse to lose weight.
- Terms regarding the relationship.
The courts also will not enforce verbal prenuptial agreements. If someone wishes to enforce the terms of a prenup in California in court, he or she must have a written, signed and notarized legal document. One spouse cannot promote divorce, enforce unfair rules, make relationship-related requirements or fail to disclose all assets and debts if he or she wishes to have a valid premarital agreement in California.
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This is intended asgeneral advice and should not be interpreted as legal advice. Each situation is unique and requires specific analysis of relevant contracts, facts and legal obligations.