California
Generally speaking, the definition of a prenuptial, premarital, antenuptial agreement (yes, those are three names for the same thing) is a contract drafted between two soon-to-be spouses that is not effective until marriage. More specifically, a Prenuptial Agreement is again, a legal contract that is drafted between two parties prior to getting married, and in California, like most states, is effective upon marriage.
California’s Uniform Premarital Agreement Act (UPAA) is the law of the land in California as pertains to prenups, and outlines the rules and requirements for a valid agreement. The terms of a prenup agreement may outline the rights to property acquired prior to, during, or after marriage – including but not limited to, assets, debt, inheritance, gifts, real estate, income and earnings, as well as future interests. A prenup agreement will also specify what will happen to this property while married, in the event of separation or divorce.
Your Premarital Agreement can also contract to the rights of spousal support, including the waiver of support, but cannot contract to child support nor custody. If you intend on waiving or specifying how spousal support may be paid in the future, make sure to read the details below. California’s UPAA outlines rules on how this must be done.
Requirements
- The contract must be in writing
- The terms must be lawful
- Signatures from both parties
- Signed voluntarily (without being under duress, intimidation, deceit, etc.)
- Notarized signatures (no, you should not skip this step!)
- Full disclosure of all financial assets and income (Do not skip this)
- If the agreement provides for spousal support in any way, each party must have had representation at the time of signing the agreement in order for that provision to be enforceable.
- Both parties should be represented by their own attorneys. If one or both parties choose not to obtain attorney representation, the party waiving that representation must sign a separate written statement of waiver;
- At least 7 days in between the final agreement and when the parties sign it. This requirement is important to provide parties enough time to obtain legal representation if they want it.
Cannot include:
- Must not include child custody or child support
- Must not exclude the right to counsel
- No incentives to commit illegal acts
- No incentives for divorce
- No unfair, unjust, or deceptive terms
- Must not include clauses that are not financial in nature, like demanding that one spouse loses weight or changes their appearance
- Be aware that if you or your future spouse plan to include any provisions regarding spousal support, then the party against whom enforcement of the spousal support provision is sought must be represented by independent counsel
- No unconscionable spousal support provisions
- California courts will not enforce verbal prenuptial agreements.
California’s 7-Day Rule
As of January 1, 2020, California’s Family Code section 1615(c)(2)(B), states that there must be at least 7 days in between presentation of the final agreement and when the parties sign it.
Why does this matter? To provide parties enough time to obtain legal representation if they want it—or, to make sure both parties have considered the impact of the terms.
Separate Property
Official term for property not considered part of the marital estate
Separate property in California by default is property owned before the date of marriage, acquired after the date of legal separation, acquired during the marriage by way of inheritance or gift as far as “gift” defined by the California Family Code. If this is not to your liking, you’ll need to specify it clearly in a legal document (such as a prenup or postnup) otherwise.
For more fine print, review Cal Fam Code §770 & Cal Fam Code §2502
Community Property
This is the California term that is used to describe any income or property (real or personal) that is acquired by either partner during the marriage and should be considered the property of both parties in the event of a divorce (called “dissolution” in California). Check out the CA statute here.
Financial Disclosure in California
Complete financial disclosure is imperative in California prenuptial agreements.
Both fiances must disclose all of their income, assets and debt.
This is done via a a “financial schedule,” which is a snapshot of all of your income, assets, debt and future inheritance and attached to the end of your prenuptial agreement.
A Waiver of Further Disclosure is required in California to confirm that you and your fiancé understand and agree that you have each received sufficient supporting documentation for all of your financial disclosure details, and that you are comfortable with the level of disclosure received.
California Spousal Support/Alimony
California offers a few different types of spousal support: temporary support, rehabilitative support, and permanent spousal support.
For the fine print on California Spousal Support, review Cal Fam Code§4330
Under the California UPAA (the California Prenuptial Agreement statute), if you or your future spouse plan to waive your rights to Spousal Support, or agree to terms relating to Spousal Support that differ from California law, it is imperative that the waiving party be represented by an attorney at the time the agreement is signed.
If that party is not represented by a lawyer, the agreement is at risk of future enforcement and the Spousal Support waiver will not be enforced.
Now, California is pretty clear on this point, which is why we want to highlight it for you. In most states, there is a higher likelihood that any waiver of Spousal Support will be set aside, and whether or not this is the case will heavily depend on the financial circumstances of the parties at the time of divorce and whether or not one party will be left destitute.
The requirement of “access to independent counsel” represents the view that representation by independent counsel is crucial for a Party waiving a right as important and life altering as Spousal Support in a California prenuptial agreement. The California Family Code does require representation for an agreement to be enforceable. See California Family Code § 1612(c) linked below for the full text.
See subsection (c) of the California Family Code relating to this provision:
“(c) 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.”
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