Any spouse who is facing divorce and has a prenup should know how to enforce it. Here’s how to enforce a prenuptial agreement in California.
A prenuptial agreement or ‘prenup’ in California is a contract entered into by two prospective spouses before marriage. In this contract, the couple decides what each individual’s marital property rights are. Many couples enter into prenups as a precautionary measure to protect assets and income in case of divorce.
Enforcing a Prenuptial Agreement in California
To enforce a prenup, a party will first draft and file a Motion to Enforce only after one spouse has filed a petition for divorce. Then attach a copy of the prenuptial agreement and request a judge enforce the agreed provisions.
In California, prenuptial agreements must be in writing to be enforceable. Both parties need to have had the legal capacity to enter into a contract and must wait a minimum of seven days before signing and receiving the prenup.
Who Can Write a Prenup?
Any individual can draft a prenuptial agreement, however without a legal background it can be easily invalidated. The Uniform Premarital Agreement Act (UPAA) outlines requirements for prenups in California.
Related: How to Get a Prenup in California: Prenuptial Requirements
Requirements for a California Prenup
A prenuptial agreement in California requires that both parties prior to signing have a(n):
- Full disclosure of property and finances
- Seven days between signing and receiving a prenup
- Independent Counsel, unless
- Full information was provided in writing about the terms and basic conditions of the prenup, including any rights and obligations that the agreement would nullify, AND
- A spouse signs a separate document called a Notice of Acknowledgement and Receipt (NOA), which must be delivered by a third party. The NOA identifies the person providing the information, on which date, and the recipient’s expression of waiving their right to an attorney.
Related: What to Include in a California Prenuptial Agreement
When are Prenups NOT Enforceable
During divorce proceedings, judges often favor prenups. A prenup may be not enforceable if it is (a):
- Violation of Public Policy
- Fraudulent
- Promoting divorce
- For an illegal purpose
- Considered grossly unfair
- Signed by intimidation or coercion
- Inadequate with the child custody/ support agreement
- Child support and spousal support can be deemed invalid within a prenuptial agreement independent of other provisions
- Spousal Support Provision
- This is the case if a spouse was unrepresented and individually waived their right.
- A situation where one spouse is not fluent in English
- If one spouse is not fluent in English, a copy should have been made in their native tongue (as per California Family code Section 1615)
FAQ About Enforcing Prenuptial Contracts in California
1. Do prenups hold up in California courts?
Prenuptial agreements do hold up in California courts. However, some provisions can make the entire prenup invalid in part or in whole.
2. What cannot be enforced by prenups in California?
In California, child support and custody terms between parties are not enforceable in court. Any child within a marriage of two parties has the right to child support. However, the court will always consider and uphold the child’s best interest.
Some spousal support terms cannot be enforced by prenups in California: one spouse cannot be left completely poor and the other wealthy. Even if a spouse waived their right to alimony in a prenup, a court can refuse this provision if one spouse is left destitute. Spousal support provisions in prenups will also not be upheld if one spouse did not understand they were signing away their ability to seek support in the prenuptial agreement.
Prenuptial contracts and agreements must be in writing to be enforceable.
3. What makes a prenup invalid in California?
If both parties did not fully disclose all income, assets, and liabilities or provided inaccurate information about income assets, or liabilities, the agreement is fraudulent and thus invalid.
4. Do prenuptial agreements expire in California?
Prenuptial agreements do not expire in California, though they can be voided.
5. How can I nullify a prenuptial agreement in California?
Consulting a divorce attorney is a first great step to nullifying a prenup. Request a close review of the elements of the contract. Pay special attention to possible unconscionability, failure to disclose, or duress and coercion.
6. When does a prenuptial agreement become effective in California?
A prenuptial agreement is not effective until the date of marriage.
7. What can be covered in a prenuptial agreement?
All past, present, and future property rights or matters relating to marriage can be included in a prenup. However, a prenup cannot waive a child’s right to support or court’s power to control child custody or visitation.
8. Do prenups need to be notarized?
Yes. At least one week after spouses have signed a prenup and sought independent legal counsel (or waived this right), the prenup must be notarized to be valid.
9. Who can deliver a Notice of Acknowledgement and Receipt (NOA)?
Only a third party can deliver an NOA to a spouse.
10. What is a postnuptial Agreement and how do I file one in California?
A postnuptial agreement is a contract entered by a couple after marriage, outlining how assets and income should be allocated between the parties in divorce. Postnuptial agreements often are created in anticipation of separation or divorce. ‘Postnups’ are often recommended for spouse(s) who did not sign a prenup. If a party receives a large inheritance DURING their marriage, they may wish to sign a postnuptial agreement and ensure it remains separate rather than marital property. Postnups may benefit partners with significant pre-marital assets or children from previous marriages. If the postnuptial agreement violates any state laws, a judge has legal authority to discard the entire ‘postnup’.
A postnuptial agreement must be written, signed by both parties and properly notarized. A postnup is governed under California Family Code Section 1500. Postnuptial agreements are valid once they are filed with family court and accepted by a judge.
Related: Prenup vs Postnup in California: The Difference
11. How can Her Lawyer help with this process?
Experienced divorce attorneys can help review individual legal circumstances and explain the possible damages you may be entitled to. An attorney in our network can help you build a strong case to receive compensation and protect your finances and property.
Contact Us
If you or a loved one want to know more about how to enforce a prenuptial agreement in Californiaa, get your free consultation with one of our experienced divorce attorneys today!