California law has specific requirements for a prenup to be enforceable.
Marriage is supposed to be about love and commitment. It also creates an important and often complicated legal relationship, subject to laws that can significantly impact a party’s future rights and obligations, especially concerning money and property, at divorce, separation and death.
When an engaged couple would prefer different rights and obligations than those automatically dictated by California law upon marriage, they should consider a premarital (also known as a prenuptial) agreement. A premarital agreement is defined in California law as ” an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage” – it is a binding and enforceable contract.
California law specifies not only what may be included and not be included, but also what procedures and formalities are required.
Prenuptial agreements are often requested, usually by only one party to the proposed marriage, when spouses are different ages or of advanced age; there are previous marriages or children from other relationships; one party is significantly wealthier than the other; or where a significant pre-existing family business is existent.
While most premarital agreements concern assets and debts or a simple memorialization of what each party owned prior to the marriage, the agreement may cover a multitude of topics. California law ( Family Code sections 1612-1615) allows these matters to be included:
– Each party’s rights and obligations concerning all property (including money) ” of either or both of them whenever and wherever acquired or located,” including its use, sale, transfer, encumbrance, disposal, transmutation, control and other similar acts
– Spousal support (also known as alimony) upon dissolution may be modified or even waived and eliminated in the agreement, though such provisions must be very carefully drafted to comply with the strict legal requirements that govern the modification of or waiver of spousal support
– The disposition of property at separation, dissolution of marriage, death or any other designated event
– The execution of an instrument like a will or trust to carry out the agreement
– The purchase of life insurance and the disbursal of the life insurance proceeds
– The choice of law governing the agreement, such that the law of another state or country may govern the agreement, even when the parties marry and reside in California
– Modifications to the parties’ personal rights and obligations so long as the provision does not violate public policy nor is illegal
The law strictly forbids any provisions regarding child support or child custody.
In order for the agreement to be enforceable, it must not be grossly unfair, unconscionable, e.g., if one of the parties could potentially become destitute, especially when the parties had significantly unequal bargaining power, or the agreement was sprung on an unsuspecting party in close proximity to the wedding or a spouse was not allowed or was coerced from consulting with an attorney.
The agreement also must be voluntary. At Shulman Family Law Group, our rule of thumb (not a law) is that the negotiations for a premarital agreement should commence not later than six months prior to the wedding. Remember, the negotiations are almost always unpleasant and utterly inconsistent with the concept of “loving engaged couples.”
The statutes provide detailed requirements concerning full and complete disclosure of assets and debt; a complete written waiver or explanation of rights in a language the parties understand; not less than seven days between proposal of the final draft of the agreement and its signing; the lack of duress, fraud or undue influence; and requisite mental capacity, i.e., the parties being of sound mind and the ability to contract.
For example, if one of the parties is not fluent in English and is not capable of understanding sophisticated legal contracts in English, then the agreement must be translated by a certified translator into the party’s native language, which can also be a considerable additional expense.
A premarital agreement may be a good idea for a future spouse at any level of wealth. Any California domiciliary with prenuptial questions should speak with an experienced family law lawyer, who specializes in prenuptial agreements, about the pros and cons, or for help negotiating, drafting or reviewing a premarital agreement. Please know that the parties having counsel is not a per se legal requirement, but one should never ever proceed without counsel. As the adage goes, if one represents oneself, one has a fool for a client!
With offices in Calabasas, the attorneys at Shulman Family Law Group, have special expertise in the counseling, preparation, negotiation and drafting of prenuptial agreements as they have drafted and negotiated a significant number of such agreements.