What is a Premarital Agreement?
A premarital agreement, more commonly referred to as a “prenup” or “prenuptial agreement” is an “agreement between prospective spouses made in contemplation of marriage and to become effective upon marriage.” California Family Code Section 1610. Generally, a prenup will set forth exceptions to the general rules imposed by the law with respect to community property and debts. Generally, after the date of marriage and before separation, all assets and debts acquired or incurred by either party are considered to be “community” assets and debts. Exceptions are made for inheritances and gifts. A well written prenup can effectively set limitations as to what is and is not to be considered “community property.” What can I include in my Prenup? A prenup can include provisions which regulate how assets and debts acquired during the marriage are treated. A prenup can also regulate whether or not a supported spouse will be entitled to spousal support or “alimony.” However, an agreement limiting or waiving spousal support, no matter how carefully written may be set aside by the court if it is found to be unconscionable. Agreements included in prenups regarding the following issues are unenforceable pursuant to current California law:
1. Child sharing or child custody. A valid prenup cannot limit either parent’s ability to have a relationship with the children of the marriage.
2. Child Support. A valid prenup cannot regulate a child support order.
3. Infidelity. A valid prenup cannot punish the unfaithful spouse for infidelity.
4. Religion. A valid prenup cannot regulate the religious freedom of either party or the religious upbringing of the children.
What are the legal requirements of a prenup? The following is a list of requirements for the drafting of a valid prenuptial agreement in California. This is not meant to be an exhaustive list, but the bare minimum. If you would like to enter into a prenuptial agreement, you should consult with an attorney well versed in what California law says about prenuptial agreements.
1. A prenuptial agreement must be in writing and signed by both parties.
2. The agreement must be executed “voluntarily.”
3. Prior to the signing of the prenuptial agreement, a full disclosure of property and financial obligations of both parties must be made.
4. Either both parties must be represented by counsel or the party without counsel must acknowledge in a separate writing that he/she was advised to seek independent counsel and expressly waived the same.
5. The party presented with the prenuptial agreement must be given seven days from the initial presentation of the agreement to the date of execution of the agreement. (recent case law has determined that the 7 day waiting period does not apply if both parties are represented.)
6. If one party is unrepresented by counsel then he/she must be fully informed of the legal effect of the terms of the agreement and acknowledge in a separate signed document having understood the rights and/or obligations he/she is giving up by entering into the agreement.
7. If a spousal support is included in the prenup, the spouse against whom enforcement may be sought must be represented by independent counsel or the provision will be unenforceable. This applies even if there is an express waiver of independent counsel.
The best way to enter into a prenup that you can be confident will withstand attack is to require that your soon to be spouse has independent counsel. My office will not even draft a prenup for a client unless the other party is represented by his/her own attorney on the drafting and negotiating of the prenup. It’s just too easy for an unrepresented party to appeal to a court to invalidate a prenup. Better safe than sorry.
Can a Prenuptial Agreement protect my heirs?
A prenuptial agreement can be useful even if a divorce never happens. For instance, if a married couple has a prenup that states that all of Husband’s earnings shall remain his sole and separate property, and he dies without ever having divorced Wife, then he has the right to will that property to whomever he wishes. If there were no prenups then even if Husband tried to will all of his assets away from Wife, Wife would inherit her community property ½ interest in those assets.
For more information regarding prenuptial agreements you can refer to the California Family Code. The validity of prenuptial agreements in California is governed by California Family Code Section 1610 et seq. Family Code Section 1612 gives an exhaustive list of area that may be covered by a California prenuptial agreement.
I have experience drafting valid California Prenuptial Agreements. My clients have been happy with my approach to the prenup as well as the efficiency by which I have been able to meet their needs in this area. I also have experience proving up prenuptial agreements that come under attack as well as requesting the invalidation of prenups that do not pass legal muster.
When it comes to family law issues in California, often the issues are simple enough to handle without a lawyer. However, when it comes to the drafting of a prenuptial agreement, my advice to you is to get it done the right way the first time. Hire an attorney to draft the agreement and make sure the attorney has experience drafting prenups.
If you have a legal issue on either side of a prenuptial agreement or need a good prenuptial agreement drafted for your upcoming nuptials, call and ask for John Griffith at Griffith Law 858-345-1720.