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Can I Write My Own Prenuptial Agreement?

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If your wedding day is approaching, you might be completely wrapped up in your fairytale romance, dream day, or even how amazing your future will be together. While these are amazing feelings that should be relished, it’s also a time to think about safeguarding your assets and protecting your future—even if you never imagine your marriage ending.

What is a Prenuptial Agreement?

A prenuptial agreement, also known as a prenup, is a written contract between two partners before entering into a legal marriage agreement. It sets out their financial plans for marriage and in the chance that their marriage ends in divorce. Prenups must contain specific provisions such as what happens to property acquired during the marriage. It’s equally critical that prenups leave out specific provisions like child custody and support, as the court won’t uphold them if a divorce occurs.

Can You Write Your Own Prenup Agreement?

The UPAA (California’s Uniform Premarital Agreement Act) outlines the abilities and restrictions of prenups in this state. The law allows couples in California to draft their own prenuptial agreements. However, if they aren’t completed correctly, the contract can easily become void or invalidated by a judge.

If you are planning on drafting your own prenup, there are several essential points you’ll need to note. Not adhering to or not fully understanding any one of them could be detrimental if you find yourself getting a divorce in the future. This is why most couples interested in having a prenuptial agreement turn to a seasoned prenup lawyer to help them write a sound, legally binding contract.

Here’s what you need to know about California prenups:

Timing is Imperative

Both spouses need to demonstrate that they have had adequate time to consult with their own attorney and thoroughly understand the prenup provisions. As such, the law imposes a minimum seven-day waiting period between proposing a prenup agreement and signing the agreement. This gives each future spouse seven days to review the contract, even though it won’t go into effect until they are legally married.

What Makes Prenups Legally Enforceable

According to the current mandates set out by the UPAA, a prenup can be legally enforceable only if both spouses meet all the following requirements:

  • There is full disclosure and understanding of the other partner’s financial assets, property, and liabilities.
  • The couple had seven full days to review the agreement prior to signing it.
  • Each partner was represented by an independent lawyer, or they waived their rights to legal counsel with a separate document— a ‘Written Statement of Waiver.’
  • If alimony/spousal support/spousal maintenance is waived or modified in any way, the partner waiving or impacted by modifying must have attorney representation.

The Terms Must be Conscionable

In California and most states, generally, all contracts, including prenuptial agreements, must be conscionable. For example, a judge could rule a contract unenforceable if they determine that the agreement will leave one party reliant on state financial assistance. For example, suppose one spouse is a single, unemployed mother of three with no post-secondary education while the husband makes $750,000 per year and has a doctorate degree. In that case, a judge would be highly unlikely to enforce a prenup that leaves the wife without any spousal support or with little support as it would be unconscionable.

What a Prenup Can’t Include

Legally, there are several aspects of marriage and divorce that a prenup can’t address. Even if you put them in your prenup, a court won’t uphold them since they aren’t legally enforceable. These include but aren’t limited to:

  • Child support and custody matters for children born into the marriage
  • Conditions of the marriage that aren’t financial—for instance, how often intimacy should occur or visits with the in-laws
  • Language that encourages divorce—for example, if one spouse doesn’t do something, the other can initiate a divorce

The Agreement Must be Voluntary

For a prenup to be legally enforceable and under basic California contract law, the prenuptial agreement can’t have been signed:

  • By coercion
  • Under duress
  • By a party lacking mental capacity

Notarization Required for All Signatures

California law does not require that signatures included on the prenup be notarized – although it is best practice to do so. Notarization means that the signatures are legitimate and verifies who signed the document and when.

Unsure if You Should Write Your Own Prenuptial Agreement?

Prenuptial agreements are complex, as they should be in order to protect both parties involved. While you have every right to draft your own prenup, it may not be enforceable. Learning that you have an unenforceable agreement when you need your prenup the most (divorce) can be devastating. By hiring a qualified prenuptial agreement attorney, you can be assured that your prenup will meet the necessary requirements and hold up in court.