Getting a Prenuptial Agreement in California
It may be the last thing you and your fiance are thinking about, but you may want to protect your finances and property in a divorce with a prenuptial agreement. Here’s how to get a prenup in California.
A prenuptial agreement is a written contract signed by two partners before marriage to plan financial matters in the event of a divorce. To get a prenuptial agreement in California, both spouses must fully understand what they’re agreeing to, have at least 7 days to review the agreement before signing it, and hire separate attorneys. The prenup will go into effect once the couple marries.
1. Meet California’s Requirements for Prenuptial Agreements
The Uniform Premarital Agreement Act (UPAA) states that prenuptial agreements, written and signed in contemplation of marriage, go into effect once couples marry. The written contract can include a couple’s property rights, how financial rights will be ordained in the event of a divorce, and other marital issues. However, a prenuptial agreement cannot affect a child’s right to support, or a parent’s right to custody and visitation.
Under the UPAA, a prenup can be legally enforceable in California only if a spouse:
- Possessed full disclosure and understanding of their spouse’s finances and property AND
- Had 7 days to review the prenuptial agreement before signing it AND
- Was represented by an independent attorney review OR
- Was made fully aware of the terms of the agreement and the rights or responsibilities to be nullified AND
- Waived their right to a separate attorney through a separate document
These requirements apply to any prenuptial agreement signed after 2002. If a spouse met all requirements but waives their right to an attorney, the nullification or modification of spousal support rights will not be enforceable. Any provisions affecting spousal support (alimony) can only be legally enforced if a spouse hired their own attorney to review the prenup.
2. Have An Attorney Draft the Prenup
The first step of getting a prenup is to have it be drafted by an attorney. Look into the requirements of signing a prenup and make sure you meet them before getting married. Speak with your spouse to determine what terms will be included in the contract. A family law attorney can help you both discuss and draft the prenuptial agreement. One of our experienced family law attorneys can help you draft a clear, enforceable prenuptial agreement.
3. Get the Prenup Reviewed By A Separate Attorney
Once one spouse has had an attorney draft the prenup, the other spouse must hire a separate attorney to review the agreement. The spouse can waive their right to an attorney through a separate document if they were made fully aware of the prenuptial terms and the ramifications of doing so.
4. Sign the Agreement and Get Married
Both parties can sign the contract after they hire their own lawyers and ultimately agree to the prenup. Of course, as the couple isn’t married yet, the agreement will not be valid immediately when signed. The signed prenuptial agreement automatically goes into effect when the couple gets married.
What Can Be Included In a Prenup
A prenuptial agreement clarifies, in writing, each spouse’s property rights and how finances will be handled in the event of divorce. The agreement can include a spouse’s rights before or after marriage to:
- Community Property
- Separate Property
Spouses can agree to modify or even give up spousal support rights as long as the terms are not “unconscionable”, or extremely unfair upon enforcement. If a court sees that spousal support terms in a prenuptial agreement are unconscionable at the time of enforcement, the court has the right to not enforce a prenuptial clause. Courts typically uphold waivers of spousal support if both spouses have relatively the same income or ability to earn. If one spouse is forced to go on welfare but the other spouse can afford to support them, the court will probably not enforce the prenup. The prenuptial agreement’s enforcement is ultimately up to the judge’s discretion.
Prenuptial agreements can also include rights to property, including community and separate property. Community property, often called marital property, are assets acquired during a marriage. Separate property, on the other hand, is property acquired before marriage or outside of community property laws. Upon marriage, certain separate properties may become community property; a prenuptial agreement can change a spouse’s right to such property. For example, a clause can be included preventing a spouse from gaining ownership of property the other spouse owned before the marriage. Prenups can help set legal boundaries between spouses and their separate properties.
The prenup can also specify how earnings acquired during the marriage will be divided if the couple splits. California law entitles spouses to 50% of assets acquired during a marriage, but the couple can agree to other terms. A spouse can waive their rights to property the other spouse acquired during the marriage as long as the clause would not negatively affect their minor children’s support rights.
What Cannot Be Included In a Prenup
Some rights cannot be waived or modified by a prenuptial agreement. Things that cannot be included or considered in a prenuptial agreement include:
- Diminished child support rights
- A spouse’s fault or wrongdoing
- Terms that would alter the duties of marriage
- Any terms that promote divorce
- Violations of public policy
- “Unconscionable” terms
Any prenuptial agreement that violates public policy is not enforceable. Rights or decisions made by public policy, meaning dictated by a court, cannot be waived in a prenuptial agreement. These rights include a child’s right to support, or what constitutes a legal marriage, among others.
Courts have the ultimate legal authority to make decisions for a child’s best interests in a divorce, so terms that limit child support rights cannot be included in the prenup. A couple can only include child support in the prenup if the clause positively impacts the child. For example, parents can agree to split the cost of a child’s education in the event of a divorce.
Furthermore, California is a no-fault state, so a spouse cannot be financially or legally punished in a prenuptial agreement for marital wrongdoing. Marital duties include support, fidelity, and respect. A prenuptial agreement that violates or reiterates these duties will not be enforced. The prenup also cannot promote or incentivize divorce by, say, giving a spouse a designated lump sum of money if the marriage ends.
Again, the terms must be legally reasonable. If the terms are extremely unfair at the time of enforcement, a judge may be compelled not to uphold the prenup. The prenup’s enforcement is ultimately up to a judge’s discretion.
FAQs About Prenuptial Agreements in California
Can you get a prenup after you get married in California?
Yes, don’t sweat it: you can get a prenup after you get married in California. A postnuptial agreement is a written contract signed after marriage to protect spouses in the event of a divorce.
Can prenups be broken in California?
In California, broken prenups can be enforced in court as long as the document is written and signed by both spouses. However, the court will not enforce a verbal agreement or terms that violate the law or public policy.
Is a prenup valid after 10 years in California?
There’s no expiration date for prenups; unless stated otherwise, they’re valid for the entire marriage. However, a “sunset clause” can state that the prenup is only valid for a specified period of time during your marriage.
How much does it cost to get a prenup in California?
Prenuptial agreements generally cost a flat fee of around $2,500. However, flat fee attorneys can charge between $2,000 and $6,000. The cost of your prenup ultimately depends on how easy negotiations will be, the length and complexity of the agreement, and your attorney’s price.
How Can a Family Law Attorney Help Me Get a Prenuptial Agreement?
Most prenuptial agreements require the legal help of a family law attorney that specializes in prenups. A prenup lawyer can help you draft a strong prenuptial agreement, or review the agreement if you’re signing one. California’s legal process to get a prenup requires one or both spouses to hire an attorney.
Free Consultation With a California Family Law Attorney
If you need a lawyer to help you get a prenup in California, contact us. One of our experienced family law attorneys can help form a prenuptial agreement that works for you and your partner. Get your free consultation with the right attorney today.