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.
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.
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 Limitations
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.
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.
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.
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