What You Need to Know About the Elements of a California Prenuptial Agreement
A prenuptial agreement, commonly known as a prenup, is a legal contract signed by two parties who are planning to get married. Here’s what to include in a California prenuptial agreement.
A prenup agreement determines asset and debt division if the couple ever gets divorced. A prenuptial agreement is suited for any couple regardless of their financial standing and is a good security measure to have in place. In order for a prenup to be valid, the couple must draft a contract with specific rules and regulations for how personal and shared assets will be divided should the marriage end for any reason.
Related: Prenup vs Postnup in California: The Difference
California Law for Prenuptial Agreements
California’s Uniform Premarital Agreement Act (UPAA) outlines the grounds for a prenuptial agreement, as well as which elements to include when writing one. As expressed earlier, a prenup is an agreement between two people who plan to marry. The agreement will become effective when the couple gets married and will remain effective throughout the duration of their marriage. In the prenup, the term “property” includes interest– present or future– legal, equitable, vested or contingent, and personal property, such as income and earnings. Both parties need to be aware of the other’s property, income, assets, and debts before entering into this agreement.
Related: How to Get a Prenup in California: Prenuptial Agreements
What to Address in a California Prenuptial Agreement
Under California law, prospective spouses can contract all of the following in their prenuptial agreement:
- Rights and obligations each party has over any of their property, wherever it is located and acquired.
- Rights to consume, exchange, lease, make a security interest in, mortgage, purchase, sell, use, transfer, dispose of, or control and manage the property in any other way.
- Rights to handle the property in the event of a separation, divorce, death, or any other incident where property may need to be reassigned.
- The creation of a will, trust, or other arrangement designed to execute provisions of the agreement.
- Ownership rights and the disposition of any benefits from a life insurance policy.
- The choice of law that will govern the authoring of the agreement.
- Any other matters, including personal rights and obligations, that do not violate public policy or statute that would impose a criminal penalty. An example of an action that would impose a criminal penalty is any criminal sentence that can be interpreted as an offense against society, such as assault, drunk driving, theft, and murder.
- Any provision regarding spousal support, including a waiver to it, cannot be enforced if the party for whom the spousal support is sought did not have independent representation at the time when the agreement was being written. Additionally, it cannot be enforced if the provision was not unconscionable, in other words, unreasonably excessive, at the time when the agreement was signed.
- It is important to remember that the right to child support must not be negatively affected by this agreement. This means that there cannot be any prenuptial terms that prevent a child from receiving child support in the case of a divorce, and the court assumes that any child born from the marriage has a right to child support.
FAQs About What to Include in a California Prenuptial Agreement
Can a prenuptial agreement be amended at any point?
A prenuptial agreement can be amended or revoked after marriage, but any change must be agreed to in writing by both parties. Once any changes have been made in the form of a signed, written agreement, it is enforceable by California law.
Are there any incidents where a premarital agreement is not enforceable?
One reason why a prenup would not be enforceable is if either parent did not voluntarily agree to any of the terms asked of them. If a party did not receive adequate information on their financial obligations or property, if fair disclosure of any information in the agreement was not given, or they did not waive the disclosure in writing, the agreement cannot be enforced. A full list of specific reasons a prenup cannot be enforced is included in California’s Uniform Premarital Agreement (UPAA).
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If you have any more questions on what to include in a California prenuptial agreement, 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.