Prenups have long been framed as cynical and unromantic. But does that perception match the reality of this common legal tool? We don't think so.
July 1, 2024 Read Time: 8 minutes Reviewed by attorney Daniel Galdjie
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A prenuptial agreement (commonly referred to as a prenup) is a signed contract between two partners before a marriage that dictates each spouse’s property and financial entitlements in the event of a divorce.
Engaged partners curious about a California prenup should talk to an experienced and independent prenuptial agreement California attorney before signing anything.
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When considering a prenuptial agreement in California, there are several questions that couples have. What can I include? Do I need an attorney? Are there any restrictions? These are all valid questions, and to help, we’ve put together some answers for you below. We hope that this comprehensive guide gives you a good overview of what a prenuptial agreement in California may look like for you.
Yes, prenuptial agreements are enforceable in California. The Uniform Premarital Agreement Act (UPAA), which has applied to California prenups since 1986, states that written prenuptial agreements signed by both parties in contemplation of marriage will automatically become effective once the couple marries.
The cost of a prenuptial agreement in California can vary depending on factors such as the agreement’s complexity, the parties’ organization, and the opposing attorney’s collaborative nature. When working with an experienced attorney, a prenup can cost around $3,000 or more, depending on the circumstances. For more information, see How Much Does a Prenup Cost?
A prenuptial agreement in California can regulate all aspects of how separate and community property assets and liabilities are treated. In the case of a financially independent couple with their own resources, a prenup can provide that all income, assets, and debts acquired or incurred remain separate property. Additionally, a prenup can address issues such as spousal support, inheritance rights, and property division in the event of divorce. For more information, see Common Clauses in a Prenup.
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Whether a prenup is worth it depends on your situation and goals. Prenups are especially beneficial when one spouse has significantly more wealth or debt than the other. They provide clarity and protection, ensuring both parties have a clear understanding of financial expectations and responsibilities. This foresight can prevent potential conflicts and legal battles in the future, making the investment in a prenup worthwhile for many California couples.
The 7-day rule in California requires that a final version of the prenuptial agreement be presented to the other party at least seven calendar days before signing. This rule ensures that both parties have sufficient time to review and consider the terms of the agreement before signing. Failure to follow the 7-day rule can make the prenuptial agreement invalid.
To ensure your prenup is valid and meets the requirements of California’s 7-day rule requirements, present a final draft 3-6 months before your wedding. This gives you and your future spouse time to review the terms and sign.
Yes, prenuptial agreements in California do not expire and remain valid indefinitely, regardless of the length of the marriage. Prenuptial agreements are designed to go into effect should your marriage end by divorce or death.
The answer is yes; California requires both spouses who wish to enter into a prenuptial agreement to seek independent counsel before agreeing, but ONLY if spousal support provisions are included in the prenuptial agreement. This requirement ensures that both parties fully understand their rights and obligations under the agreement and are not subject to undue influence or coercion.
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Yes, a California prenuptial agreement must be signed in the presence of a notary in order to be valid. Additionally, the final form of the document must be in the hands of each party at least 7 days before signing the document to ensure that both parties have adequate time to review and consider the terms of the agreement.
No, you cannot sign a prenuptial agreement after the wedding. Instead, you would need to sign a postnuptial agreement. Postnuptial agreements are similar to prenuptial agreements but are entered into after the marriage has taken place. They can be used to address issues such as property division, spousal support, and inheritance rights in the event of divorce or death. For more information, see Can You Get a Prenup After Marriage?
Yes, under California’s Uniform Premarital Agreement Act (UPAA), you can create your own prenuptial agreement as long as it is in writing and follows all of the requirements of a valid prenuptial agreement. However, it is recommended that both parties seek independent legal counsel to ensure that their rights and interests are adequately protected. For more information, see Online Prenup vs Hiring a Lawyer.
While it is possible to create your own prenuptial agreement in California, it is highly recommended that both parties seek independent legal counsel to ensure that their rights and interests are adequately protected. In fact, California law requires that both parties who wish to enter into a prenuptial agreement seek independent counsel before agreeing. This requirement is in place to ensure that both parties fully understand their rights and obligations under the agreement and are not subject to undue influence or coercion. Failure to obtain independent counsel can challenge or invalidate the agreement in court.
At its core, a prenup is a tool that allows you to create the laws that will govern your marriage rather than being subject to California’s community property laws. How awesome is that?
In California, courts will divide their property according to community property laws if a couple divorces without a prenuptial agreement. “Community property” denotes all property accumulated during the marriage minus each spouse’s “separate property.” Separate property includes:
Unlike most states that seek to divide marital assets equitably in a divorce, California community property law emphasizes equality. This means that when getting a divorce in the state, California courts will generally divide up the marital estate 50/50. Prenuptial agreements offer a way to circumvent this rule. They allow couples to classify what is and is not separate property. Prenups also allow couples to determine how community property will be divided and distributed.
California prenups are governed by the California Uniform Prenuptial Agreement Act (CUPAA). This law dictates how a valid prenuptial agreement must be formed. It also provides for what subject matter can and cannot be addressed in the contract.
Under the CUPAA, a California prenup may address many aspects of the marital estate. These aspects include the right to buy or sell a piece of property, the division of property upon divorce or death, the making of a will or trust, entitlements to benefits from life insurance policies and retirement accounts, and entitlements to investment property.
The courts will not enforce terms in a prenuptial agreement that dictate child custody rights and child support obligations. Other subject matters unenforceable in a prenup include:
California courts also commonly require a spouse to be represented by a prenuptial agreement California attorney before signing a California prenup that waives the right to spousal support.
Note that prenuptial agreements must be written, signed after a mandatory seven-day waiting period, and notarized. California courts will not enforce a verbal prenup. In addition, the parties must disclose each and every asset and debt. Otherwise, the entire California prenup may be invalidated.
The primary advantage of a valid California prenup is that it allows the parties to bypass California’s community property system of dividing and distributing community assets during divorce. However, there are many other benefits.
Discussing the creation and terms of a California prenup can be a romance killer. However, open and honest discussions about finances can also be beneficial to your relationship. Finances are typically a source of conflict in marriages. Planning together for an unpleasant contingency demonstrates your willingness to communicate and cooperate in the worst of times. Even if you never sign a prenup, you will start your marriage off on the right foot by addressing financial issues honestly and openly.
A valid California prenup allows the parties to plan for foreseeable conflicts in divorce ahead of time. This can resolve the separation of financial assets quickly, allowing you and your spouse to avoid a lengthy, contentious, and expensive divorce trial.
Furthermore, even when parties without a valid prenup agreement ultimately agree on every issue in a divorce, they may still be out several thousand dollars in court costs and attorney fees. Moreover, while many couples may begin their divorce with no contested issues, future ex-spouses tend to disagree on matters the longer the divorce process carries on. A valid California prenup does away with this risk by resolving all potential conflicts ahead of time and while the parties are still amicable.
Perhaps the most contested matter in a divorce is determining which property is community and which property is the separate property of each spouse. Trouble arises when spouses without a prenuptial agreement commingle their personal property with community property such that the former loses its identity. When this happens, separate property may become community property subject to 50/50 division. Examples of commingled property range from financial accounts to the antique chandelier you inherited from your grandmother and that’s permanently affixed to the marital home.
California prenup law lets couples specify what property belongs to each spouse and how they’d like to distribute the assets in the event personal property is commingled with the marital estate.
California courts divide and allocate debts as well as assets in a divorce. When a spouse enters the marriage with student loan debt or credit card debt, a valid prenuptial agreement can ensure that the other spouse does not become obligated to pay the debts in the event of divorce.
Additional benefits of a valid prenuptial agreement include that they help protect a spouse’s separately owned business, they help protect children from a prior marriage, and they can help ensure compensation for a spouse who sacrifices their own career to support the other or becomes a stay-at-home parent.
Most people only know about prenuptial agreements from what they hear on the radio or see on television. Unfortunately, these sources tend to perpetuate several myths that may turn a couple off to the idea of planning for the end of their relationship. That is why it is a good idea for each partner to separately speak with their own attorney. An experienced estate planning or family law attorney can help paint a more realistic picture of the process and typical outcomes.
An estimated 50% of all marriages end in divorce. Couples who truly want the best for their soon-to-be spouse should consider their partner’s best interests in all possible scenarios, no matter how unsettling. Acknowledging the statistics of marriage and divorce is not a sign of contempt, disloyalty, or distrust.
For most newlyweds, their most valuable asset is their future earning potential. Divorce becomes more complicated as spouses age, earn more money, and acquire assets during the marriage because personal assets become commingled with jointly owned property. Even if you don’t plan on becoming a billionaire, remember that you can’t enter into a prenup after marriage. Planning for financial success ahead of time will potentially save a lot of financial heartache – and regret – in the future.
As long as the parties have drafted and executed their prenup in accordance with the requirements listed in the CUPPA and as long as a California court finds no fraud, duress, non-disclosure of assets, or unconscionable terms, then the agreement becomes enforceable in a court of law just like any contract.
After you overcome the stigma and understand that you’re not simply planning for a breakup, you should consult an experienced and independent prenuptial agreement California attorney. Similarly, your partner should consult their own seasoned and independent attorney. The attorneys at Cyrus Pacific Law understand how a messy divorce can ruin lives. They also understand and appreciate the sensitive nature of premarital agreements. We pride ourselves in our ability to zealously represent client interests while remaining fair and considerate of your soon-to-be spouse’s best interests.
Contact us today for a free consultation.
