California Prenup Basics


If you’re preparing to marry, it’s an extraordinarily happy time in your life, and you probably don’t want to think too much about a prenuptial agreement. The fact is, however, that a prenup is in no way a sign that either one of you isn’t fully committed to your marriage. Instead, a prenup is simply a legal contract that provides you with a roadmap for the exceedingly complicated process that is divorce – if it ever comes to that.

We know that divorce happens, but a prenup can allow you the confidence that comes from having an exit plan that you created together when you both had cooler heads and weren’t in the throes of a stressful divorce. If you are entering a second marriage that involves children and/or complicated financials, a prenuptial agreement becomes that much more important. If you are getting married, it’s in you and your intended’s best interest to consult with an experienced Orange County divorce attorney about a prenuptial agreement today.

California Prenups

A prenuptial agreement, though they often get a bad rap, is nothing more than a contract that a couple enters into upon marriage. Prenups generally cover how a couple’s assets will be divided if the marriage ends in divorce. Often, prenups address those assets that each of you brings into the marriage and delineate those assets that remain your separate property. A prenup is likely to specifically address high-value assets like your home and other real property. Your prenup may also specify how you will divide assets you accrue over the course of your marriage, and just as importantly, how you will deal with the division of marital debt. For example, if one of you has substantial student loans, this could be an important component of your prenup.

It’s important to clarify that a prenup cannot address issues related to child custody or child support. The court makes all such decisions solely on what is in the best interests of the children.

California Law

Prenuptial agreements in California are governed by the Uniform Premarital Agreement Act of 1986 (UPAA), which specifies the basic requirements for a valid prenup:

• Prenups are subject to the basic tenets of contract law, which means that both spouses must provide consent and must be mentally competent to do so.
• The prenuptial contract is void if either spouse’s consent is predicated on the other party’s fraud or error. This means that if your spouse lies or makes misleading statements or provides incorrect information that is based on genuine misunderstanding about relevant information it can invalidate the prenup.
• If either one of you isn’t proficient in English, the prenuptial agreement must be translated for you.

In addition to these requirements, your prenuptial agreement cannot be unconscionable, which is a fancy way of saying that the agreement can’t be the product of seriously lopsided bargaining power. For example, if one spouse isn’t a U.S. citizen, the court may determine that the contract is unconscionable because the noncitizen may have feared that failing to sign the contract would lead to the loss of his or her chances of obtaining citizenship.

The Court’s Discretion

The court will generally be leery of any prenuptial agreement that unduly favors one spouse over another. There are several components that must be adequately addressed:

• Both of you must have been presented with each other’s complete financial information, including property ownership and debt load.
• Each of you must receive full disclosure related to the prenup’s terms, rights, and conditions.
• Upon receipt of the prenup, both of you must wait at least seven days before signing it.

Finally, before signing the prenup, each of you must either have independent legal counsel or must waive the right to do so. If you have been presented with a prenuptial agreement, you are ill advised to sign it before consulting with an experienced Orange County divorce attorney.

California: A Community Property State

California is a community property state, which generally means that the assets you acquire as a married couple will be split evenly between you if your marriage ends in divorce. Further, any property that either of you brought into the marriage as separate property will remain separate property. Absent a prenuptial agreement, these are the general rules that typically apply in California divorces. A prenup can help you bypass this arrangement in the event of a divorce. The fact is that the court has wide discretion when it comes to evenly dividing a divorcing couple’s marital property, and its equal division may not coincide with your own ideas about what’s equal. A California prenup can help you better protect your assets.

Spousal Inheritance

No matter what you or your spouse’s will designates, there are enforceable rules pertaining to spousal inheritance that can supersede your will. The law will award your spouse half of your marital property upon your death even if you specifically preclude this from happening in your will. A prenup allows you a mechanism to bypass this eventuality – as long as it doesn’t impact your minor children negatively.

Prenups and Limitations

There are limitations to what a California prenuptial agreement can address. Issues related to child custody or child support in a prenup are unenforceable. If the agreement allows for child support that exceeds the court-ordered amount (including contributing to college education or to supporting a child who’s reached adulthood), it may be enforceable. Additionally, your prenuptial agreement can’t penalize one spouse for fault, such as for having an affair. Finally, the court again has wide discretion to examine your prenuptial agreement and to modify or decline parts of it (if the court determines that the agreement favors one spouse to the detriment of the other).

Your Premarital Agreement

Marriage is complicated, and divorce is more complicated still. A prenuptial agreement can provide you with the peace of mind that comes from knowing that – if you ever do face a divorce – you have a contract in place that will help protect your rights and make the divorce process a bit more civilized. Before you get married, consult with a knowledgeable Orange County divorce attorney about how you and your intended can protect yourselves from the ravages of divorce with a carefully executed prenuptial agreement.