What Is a California Prenuptial Agreement?
The Uniform Premarital Agreement Act (UPAA), adopted in California Family Code Sections 1610 to 1617, defines premarital agreements as between two spouses who wish to get married and establish property rights before and during the marriage. This keeps things from getting messy, should the relationship end in divorce.
California is a community property state, as per CA Fam Code § 2580-2581, meaning each spouse equally owns any property acquired during the marriage. Each spouse would have a right to equal division of this upon divorce. This is where the prenup comes in. It lets couples set their own rules for owning property and money, both before and during the marriage, instead of following community property laws.
How to Write a Prenuptial Agreement in California
You can make your own contract with our California prenuptial agreement form. It will ask for this information:
- Identify each party: Describe each spouse, providing city, state, and date of marriage.
- List background information and children: Does either member have previous addresses or marriages? Are there any children from prior relationships? Make sure to include them.
- Divide property ownership: List specifically what property was obtained prior to the marriage, whether it is jointly or individually owned, and who should receive it in a divorce.
- Assign business ownership: Describe any businesses owned or acquired prior to or during the marriage. Decide whether any increase in value would go to the owner or be split, and to what degree. The division of any increase in the value of a business started or acquired during the marriage.
- Settle debts: Is either party coming into the marriage with debts? If so, do you wish to combine them or assign them individually? If the latter, you can do so according to state laws, set a specific percentage, or simply state that each party pays their own debts. The same can go for any debts acquired during the marriage.
- Set tax filing: Determine whether you would file income taxes jointly or separately during the marriage.
- Housing responsibility: Who will pay for household expenses? Will one person be responsible, or do you wish to set a specific percentage? You can also determine whether the property will belong to one person or be considered a shared asset, then decide whether someone keeps the home or you would sell it and split the proceeds (and the percentage by which you would split).
- Spousal support: Should the marriage end in divorce, you can predetermine who pays alimony and how much they would pay. In the absence of an agreement, the court will follow the procedures in CA Fam Code §4320 to determine support.
- Disability or death: You can determine the rights and obligations of either spouse in the event of disability or death.
- Resolving disputes: If a problem comes up with the prenup, you can choose ways to settle it peacefully.
- Review and sign: Once you’ve laid out each term and all parties agree, review the document to ensure it’s fair and compliant, then sign it.
Sample California Prenuptial Agreement
View a sample California prenuptial agreement below and then customize this template using our document editor. You can download the completed agreement in PDF or Word format.
Legal Requirements for a California Prenuptial Agreement
When making a prenuptial agreement in California, follow the legal rules in CA Fam Code § 1600 to 1617. Couples who don’t may find they can’t enforce the agreement in court.
Signing and Enforceability
Both spouses must sign and date the premarital agreement. Use a notary acknowledgment form to verify the signatures before a California notary public. This will prove the executed prenuptial agreement is legitimate in the event of a dispute.
California also requires each spouse to sign the prenuptial agreement free of fraud, duress, undue influence, or coercion. A court may invalidate a prenuptial agreement that fails to meet this standard. CA Fam Code § 1615 requires you to give the other party a copy of the proposed agreement at least seven calendar days prior to its signing.
If an attorney doesn’t represent one side, the agreement must come with an explanation of rights so that the other party understands the terms and effect of the document.
Financial Disclosure
Spouses must also disclose complete, accurate financials as part of the process. A prenuptial agreement in California should list the assets, debts, and financial responsibilities each spouse has, along with their values.
Excluded Terms
CA Fam Code § 1612(a)(7) prohibits premarital agreements from including any terms that violate either public policy or a statute that imposes a criminal penalty. These agreements can also not deprive the court of its right to hear and decide matters related to child custody and support.
Attorney Representation
Attorney representation is not always necessary for signing an enforceable prenuptial agreement. However, CA Fam Code § 1612(c) requires each party to have independent legal counsel if the prenuptial agreement includes anything about potential alimony payments.
Spousal Support Waivers
You can agree to waive the right to spousal support in a prenuptial agreement in California. However, any person who is waiving their right to spousal support in a prenup must be represented by independent counsel at the time of signing per CA Fam Code 1612(c).
The court also reserves the right not to enforce the agreement if the spousal support terms are patently unfair. Assuming you meet all requirements, a court will have to enforce the terms of a spousal support waiver clause in a subsequent divorce agreement or court order.
Modifications and Sunset Clauses
During the marriage, you can modify the terms of your prenuptial agreement by using our California postnuptial agreement form. Sunset clauses are a common feature of prenuptial agreements, setting an expiration date for a specific term in the contract. For example, a spousal support waiver may have a sunset clause that expires on the couple’s 10th wedding anniversary.
