A prenuptial agreement (also called a premarital agreement or prenup) is a legal contract two parties sign before they enter into the institution of marriage. The contract describes what will happen with the couple’s assets and debts should the marriage end in divorce. A prenuptial agreement can be a wise choice for couples of all financial standing. To have a valid prenup in California, a couple must draw up the contract per specific laws and regulations.
California’s Premarital Agreement Law
California’s Uniform Premarital Agreement Act (UPAA) is the main statute outlining the rules and requirements for prenuptial agreements. The definition of a premarital agreement according to the law is a contract two prospective spouses enter into before marriage that is not effective until marriage. Properties involved in a prenup can include real estate, financial interests, income, earnings, debts and other present or future assets. The UPAA imposes certain requirements for a couple to create a valid prenup.
- A written contract
- Lawful terms within the prenup
- Signatures from both parties
- Signed voluntarily (without coercion, intimidation, deceit or duress)
- Signature from a notary
- At least seven days to seek independent legal counsel before signing
These are the main requirements for drawing up a prenuptial agreement that will hold up in a court of law. It is wise for a couple to invest in a lawyer’s assistance when creating a premarital agreement. Help from an attorney can answer questions, quell concerns and result in a document the courts in California will enforce. A San Mateo divorce lawyer can assist a couple with all the steps it takes to create a valid prenup in the state.
What a Prenup Can and Cannot Include
According to the UPAA, a prenuptial contract may address many different rights and matters regarding marital property. These matters include the rights to buy, sell or otherwise use a piece of property; the division of property upon divorce or death; the making of a will or trust; ownership rights to death benefits from life insurance policies; and which laws will govern the creation of the prenup. The courts will not enforce illegal terms in a prenuptial agreement.
- Anything regarding child custody or child support
- Spousal maintenance requirements, if the signing spouse opted not to receive independent legal counsel before signing
- Any requirements for one spouse to commit illegal acts
- Unfair, unjust, exploitive or deceptive terms
- Non-financial requirements, such as demanding a spouse to lose weight
- Terms regarding the relationship
The courts also will not enforce verbal prenuptial agreements. If someone wishes to enforce the terms of a prenup in California in court, he or she must have a written, signed and notarized legal document. One spouse cannot promote divorce, enforce unfair rules, make relationship-related requirements or fail to disclose all assets and debts if he or she wishes to have a valid premarital agreement in California.
What Could Invalidate a Prenup?
Failing to fulfill any of California’s prenuptial agreement requirements could result in a prenup the courts will not enforce. Examples include having a verbal contract, forcing one spouse to sign involuntarily, skipping legal requirements and including unfair terms in the agreement. It is also important to note that the courts will not enforce a prenup until and unless the couple marries. The terms of the prenup will not go into effect until the couple finalizes the marriage.
It is possible to change the terms of a premarital agreement after the wedding. Both spouses must agree to the changes and comply with the steps it takes to modify the original draft. Negotiating new arrangements may take help from an attorney to make sure they are legally valid. If a couple decides they want a contract but have already married, a postnuptial agreement could fill this need. Both types of agreements can help couples avoid complicated divorces down the road, as long as they are legally valid.