Prenuptial Agreement California Law

No one gets married with the intention of getting a divorce, but it happens – there are nearly a million divorces every year in the US. And with divorce comes the complicated process of splitting up two lives. If there are children, there are custody and child support concerns. There may be spousal support issues. Dividing up the assets the couple has accrued or brought into the marriage is also complex – it’s just not an easy process. That’s why couples use prenups (prenuptial agreements) – they agree in advance on how to unwind the financial aspects marriage so that in the case of divorce, the process is as painless as possible. The law on prenups is determined by each state, so let’s take a look at the rules in California.

How Prenups Work

A prenup is a contract that you sign before you get married. Prenups cover how the marital assets and debts will be split up in the event of a divorce. Generally, they cover the assets each partner brings into the marriage (usually stating that those assets will stay with the original owner) and the assets accrued during the marriage. Prenups can cover what happens to a marital home, car, or other property. They can also cover the division of marital debt. If one partner has student loans, for example, a prenup can address whether that debt will stay with the partner that accrued it or whether it will be split between the two.

Note that while prenups can cover pretty much any aspect of your finances, they cannot cover child custody or child support issues. The court will decide those issues based on what’s best for the child.

Prenuptial Agreement California Law

In California, prenups are governed by the Uniform Premarital Agreement Act of 1986 (UPAA). UPAA sets out certain basic requirements for the agreement to be valid. First, prenups are subject to the basic rules of contract law – both parties must be mentally competent to consent and must actually consent. The agreement is invalid if either party gives consent based on fraud or mistake (lying or making misleading statements about relevant information or genuinely misunderstanding the information or the agreement). If one of the spouses is not proficient in English, the agreement has to be translated to that person’s native tongue.

Finally, the agreement cannot be “unconscionable.” That means it can’t be the result of seriously unequal bargaining power. For example, imagine a prenup between a US citizen and a non-citizen that leaves almost all of the property to the citizen. The court may find that agreement to be unconscionable because the parties had unequal bargaining power – the non-citizen may have feared the loss of the chance at citizenship if he or she did not agree to the prenup. In general, the court will scrutinize any agreement that unduly favors one party.

• each partner must either have independent legal counsel or waive the right to independent counsel before signing the agreement
• if a partner is not proficient in English, the agreement must be translated to that person’s native language
• the agreement cannot be unconscionable – it can’t be the result of seriously unequal bargaining power and it can’t unreasonably favor one party

In addition to those general requirements of contract law, UPAA contains a number of provisions specific to prenups:

• both parties must have complete information about the finances and property of the other partner
• each partner must wait a minimum of 7 days after receiving the prenup before signing it
• each partner must receive full disclosure of the terms, rights, and conditions of the prenup
• each partner must either have independent legal counsel or waive the right to independent counsel before signing the agreement

If a party wants to waive their right to counsel, they must have complete information about the potential consequences of that decision. They’ll also need to sign a document separate from the prenup stating that they’ve received that information and want to waive their right to counsel. The document must also identify the person that provided them with the information about the consequences of the waiver.

Community Property And Inheritance

California is a “community property” state. This means that in the absence of a prenup, the property owned by each partner before the marriage will go back to that partner and property accrued or shared during the marriage will be split evenly. With a prenup, the couple can agree either to treat separate property as community property or community property as separate property.

Another aspect of the community property laws in California affects inheritance rights. You can create a will in California, but there are rules about spousal inheritance that will be enforced regardless of what’s in the will. Even if you expressly state that you don’t want your spouse to receive anything after your death, the court will still award him or her half of your community property. Prenups allow you to waive or alter your inheritance rights, as long as it won’t negatively affect your minor children.

Limits To Prenups In California

There are certain issues that prenups in California cannot address, usually due to public policy concerns. Provisions about child custody or how to raise children aren’t enforceable. Provisions about child support are also unenforceable, unless the provision is about providing more support than what the court orders – paying for a college education or supporting an adult child, for example. Prenups also can’t include provisions that penalize one partner for fault. For example, you can’t decide that one spouse will get nothing in the divorce if he or she is unfaithful.

Finally, even if all of the provisions of the prenup are theoretically valid, the court may examine the agreement and alter it or decline to enforce parts of it if they find that it’s extremely unfair in the first place or if one partner benefits way more than the other partner.

Getting A Prenup

There are a number of reasons to sign a prenup. First, they can help each partner protect valuable assets. They also allow couples to sit down and decide on a fair disposition of any assets while there isn’t any conflict – decisions made with cool heads are more likely to be fair and reasonable than decisions made in the heat of a contentious divorce. Finally, they make the divorce process much simpler. Most or all of the complex financial decisions associated with a split have already been made.

The rules governing prenups in California are complex and you’re generally required to have legal counsel to make sure that the agreement is fair and that you understand all the terms and conditions. If you’re getting married, congratulations! And you should consider consulting with an experienced local attorney to discuss whether a prenup is right for you.