California Prenuptial Agreement
You may want to consider signing a California prenuptial agreement before you are married in the State of California should you presently have significant assets or care to establish what property a future spouse is to receive upon divorce.
California’s Uniform Premarital Agreement Act
A California prenuptial agreement is governed by California’s Uniform Premarital Agreement Act. Under this act, a California prenuptial agreement is known as a premarital agreement.
California Prenuptial Agreement Defined
California Family Law §1610 defines a premarital agreement as an agreement made by two parties who may be engaged couple that will take effect when they get married.
California Prenuptial Agreement Must Be in Writing
Under California Family Law §1611 it states that a California prenuptial agreement must be in writing. Oral agreements are not valid nor enforceable.
California Family Law §1612 sets out what can and cannot be be addressed in a California prenuptial agreement. Generally any financial issue can be dealt with while issues relating to child custody and child support are not permitted. Nor is one allowed to contract about obligations during the marriage, such as household chores, frequency of sexual relations, or penalties for adultery. Provisions regarding spousal support will not be enforced unless the person whose receipt of spousal support is limited or waived has had the agreement reviewed by independent counsel. Any provision regarding spousal support cannot be unconscionable at the time of enforcement.
California Prenuptial Agreement Effective Upon Marriage
California Family Law §1613 of the provides that a premarital agreement becomes effective upon marriage.
Amendments and Revocation
Under California Family Law §1614, you are allowed to amend or revoke your prenuptial agreement after you get married, following similar procedures undertaken in the initial creation.
Each party must be fully informed – in writing – of the terms of the agreement and the effect of the agreement before the agreement is signed. Each party must be fully informed of the rights and obligations he or she may be giving up by signing the agreement. This information, and the agreement itself, must be provided to each party in a language in which each is proficient – meaning that each party must have a very good knowledge of the language of the agreement and the explanation of the effect of the agreement.
Each party must provide to the other a full disclosure of his or her property and financial obligations. The disclosure is normally accomplished through the parties’ exchange of two forms published by the California Judicial Council – the Income and Expense
Declaration (FL-150) and the Schedule of Assets and Debts (FL-142). Each form must be completely filled out and served on the other party with supporting documents.
Each party must waive, in writing, his or her right to a further disclosure.
Disclosures, Voluntary Action & Conscionability
California Family Law §1615 states that there must be financial disclosure, the premarital agreement must not be unconscionable, there must not be any coercion, and the parties must understand what they are signing.
Seven-Day Waiting Period
California requires that there be at least seven days between when a party is first presented with an agreement and when the agreement is signed. Seven days must elapse between the time that (i) each party receives the agreement and is advised to seek counsel, and the time that (ii) each party signs the agreement.
Representation by an Attorney
If either party is not represented by his or her own attorney at the time the agreement is signed, the party must have been advised to retain his or her own attorney, and must sign a waiver, in a separate document from the premarital agreement, of representation. It must be executed as a
If either party is not represented by his or her own attorney at the time the agreement is signed, he or she must sign a document that says that he or she received the explanation of the agreement’s effect on his or her rights and obligations, and who provided the explanation.
California Family Law §1616 deals with what happens regarding a prenuptial agreement if your marriage is void; your marriage is ended by annulment rather than by divorce.
California Prenuptial Agreement Limitations
- Child Support: California prenups cannot regulate child custody or child support – these are areas that are left to the court’s authority based on what is in the child’s best interests. Child support belongs to the child and not the parent, so parents cannot contract away a child’s right to support.
- Spousal Support: California law allows you to waive or limit spousal support as long as the provision is not deemed unconscionable (unreasonably unfair). It’s hard to know exactly what a court will consider “unconscionable,” but, for example, let’s say a prenup contains a complete prohibition on spousal support, and one spouse to the contract has substantially more assets and income. If that spouse tries to enforce the spousal support waiver after a long-term marriage, and the provision would leave the other spouse destitute, a judge may think twice before upholding that agreement. If there is a significant disparity in the amount of wealth between the parties, instead of completely waiving spousal support, one alternative is to place limits on the amount and duration of support. The amount and duration can be based on a formula which takes into account the income of the parties and the duration of the marriage.
- Community Property: In the absence of a prenup, California community property law provides that all community property (any property acquired during the marriage that is not a gift or an inheritance) is divided equally upon divorce. It usually doesn’t matter if the property is in one party’s name – if it is acquired during marriage, with some exceptions, it is community property. Property owned before marriage (or acquired by gift or inheritance) is considered “separate property” – which means it belongs exclusively to the spouse that acquired it and doesn’t fall under community property rules. However, efforts to improve, enhance, or contribute to separate property can create a community property interest in that separate property. This is where a prenup can come into play. A prenup can provide that your spouse never acquires a community interest in your separate property.
California Prenuptial Agreement Law
Family Code § 1610. As used in this chapter:
- “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
- “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
Family Code § 1611. A premarital agreement shall be in writing and signed by both parties. It is enforceable without consideration.
Family Code § 1612.
- Parties to a premarital agreement may contract with respect to all of the following:
- The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
- The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
- The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
- The ownership rights in and disposition of the death benefit from a life insurance policy.
- The choice of law governing the construction of the agreement.
- Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
- The right of a child to support may not be adversely affected by a premarital agreement.
- Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.
Family Code § 1613. A premarital agreement becomes effective upon marriage.
Family Code § 1614. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
Family Code § 1615.
- A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
- That party did not execute the agreement voluntarily.
- The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
- That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
- That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
- That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
- An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
- For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
- The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
- The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
- The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
- The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
- Any other factors the court deems relevant.
Family Code § 1616. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
Family Code § 1617. Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
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Although you may be considering a California prenuptial agreement prior to marriage or a post nuptial agreement during marriage, you may want to first learn more about what happens in a divorce. For more information click on one of the following links: