An Introduction to California Prenuptial Agreements

California law has strict requirements for premarital agreements.

California law recognizes premarital agreements, also called prenuptial agreements or prenups, as a valid and enforceable way to arrange property rights between future spouses. State law has specific requirements that must be met. Premarital agreements are usually used to make changes to the way the law would otherwise distribute or characterize property between spouses in case of divorce or death.

Examples of ways prenups are used include:

  • To preserve property or inheritance of a spouse for children from a previous relationship
  • To keep a family business with the spouse's family of origin
  • To arrange for property ownership that is advantageous for tax purposes
  • To predetermine whether spousal support would be granted in divorce
  • To limit how much of a spouse's separate assets the other would get in divorce

Some of the requirements of California law include:

  • Prenuptial agreements may not include provisions regarding child support.
  • They must be in writing and signed by each party.
  • Prenups do not require consideration, meaning a party must not give up a right or an interest as part of the deal.
  • The parties may contract about almost anything, but not anything that violates public policy or a law that imposes a criminal penalty.
  • A provision about alimony is unenforceable if the party waiving rights was not represented by legal counsel or if the provision would be unconscionable (shockingly unfair) at the time of enforcement.
  • A prenup must be executed voluntarily, meaning after getting a lawyer or knowingly waiving that right; after at least seven days between presentment and signing; if unrepresented by counsel, after acknowledging in writing that the agreement's terms were explained, that those explanations were also received in writing and that the explanations and writing were in a language in which the recipient is proficient; and that the agreement and all writings were not executed "under duress, fraud, or undue influence"; and that both parties had the capacity to enter the agreement.

If you are a Californian planning to get married and believe a prenuptial agreement may be a good idea or whose fiancé or fiancée has either raised the matter or presented a prenuptial agreement for consideration, speak to an experienced family lawyer as soon as possible. The law governing prenups is complicated and no one should decide to enter into one without complete understanding of all the legal consequences. This is true whether you want to protect your property and financial interests in a new marriage or whether you are deciding whether to sign one your spouse-to-be has drafted.

It is particularly important that you not sign an agreement that may have been presented to you by your partner without warning. Even if substantial wedding preparation has already been done or the wedding date is approaching, you should not feel pressured into signing a premarital agreement without thorough review by and advice from your own lawyer.

An attorney can assist with drafting, reviewing or negotiating prenuptial agreement terms. The language of a premarital agreement should be ironclad, leaving no room for a legal challenge. Legal counsel will also provide direction about the required procedures to be followed concerning execution, acknowledgement and recordation.

In case of divorce or death of a spouse, legal counsel can advocate for enforcement of an agreement or challenge one if it appears not to be enforceable, either through negotiation or litigation, if necessary.

The lawyers at the Glendale law firm of Simpson | Cawelti LLP represent clients throughout Southern California in all aspects of prenuptial agreements.