A California prenuptial agreement, also referred to as a “premarital agreement,” is a legally binding contract entered into by a couple before they get married or enter into a domestic partnership. The document delineates property rights acquired before, during, or after marriage, covering assets, debts, inheritances, gifts, real estate, income, and future interests. It also specifies how such property will be managed during the marriage and distributed in case of separation.
The agreement can address various financial matters, including the division of assets and debts, spousal support, and the handling of property acquired during the marriage. It cannot, however, dictate child custody or support arrangements, as these are determined based on the best interests of the child at the time of divorce.
Legal Considerations
Laws:
- Family Code § 1610 – Definitions
- Family Code § 1611 – Signing
- Family Code § 1612 – Content of agreement
- Family Code § 1613 – Effective upon marriage
- Family Code § 1614 – Amendment or revocation
- Family Code § 1615 – When not enforceable
- Family Code § 1616 – If a marriage is void
- Family Code § 1617 – Statute of limitations
Signing Requirements: It must be written and signed by both parties to be enforceable. Unlike other contracts, it does not require consideration to be legally binding (§ 1611).
Dividing Property: Community property (§ 2581).
Enforceability Requirements
- Essential Terms for Validity: Must be in written form, containing lawful provisions, and signed by both parties, with signatures ideally notarized for added authenticity. The agreement must be entered into voluntarily, free from coercion or deception, and accompanied by full disclosure of all financial assets and income by both parties.
- Terms to Exclude: Provisions related to child custody or child support, as well as any clauses that impede the right to legal counsel or incentivize illegal acts or divorce. The agreement must not contain unfair, unjust, or deceptive terms nor include non-financial clauses such as those pertaining to physical appearance.
- Additional Requirements: The prenup 7-day rule in California mandates a minimum seven-day period between presenting the final agreement and signing, allowing ample time for thorough consideration and legal counsel (Family Code § 1615(c)(2)(B)).
Financial Disclosure
Both parties must reveal all sources of income, assets, and debt. This is facilitated through a “financial schedule” attached to the agreement, providing an overview of financial details, including future inheritances.
Spousal Support
If the agreement includes provisions for spousal support or for a waiver of spousal support, they must be fair and not unconscionable. While it is advisable for each party to have separate representation, this is not a requirement and there is no requirement for a written waiver of representation.
