A pre-nuptial agreement (sometimes known as a "premarital agreement" or a "prenup") is an agreement regarding the property rights of a married couple. It becomes effective upon the marriage of the couple. A minor can make a pre-nuptial agreement if the minor is emancipated or is otherwise capable of entering into marriage. There are many pros and cons to making a pre-nuptial agreement, including some that are financial and others that are emotional in nature.
California Prenuptial Agreements: Requirements
Given that the agreement is between two spouses who may have differing interests and goals in mind, it is a good idea for each spouse to be represented by their own attorney when signing a pre-nuptial agreement. For a pre-nuptial agreement to be valid, it must be in writing and signed by both parties; also, the spouse receiving and signing onto the agreement must have:
- Received complete financial information about the other party prior to signing it;
- Had at least seven (7) days to review the agreement before signing it (or the opportunity to have it reviewed by an attorney); and
- Been represented by a separate attorney (than the one representing the other spouse), unless they have received (and signed an affidavit upon receipt) detailed information about the terms and obligations of the agreement.
In order to revoke or make any changes to the agreement, the revocation or change must also be in writing and signed by both parties. Also, for the agreement to be enforceable, both parties need to have entered it voluntarily, they need to have full knowledge and understanding of the terms of the agreement, and the terms must not be unfair or too one-sided.
Contents of Premarital Agreements
Pre-nuptial agreements may cover a wide variety of subjects and will generally be upheld as long as the terms are not in violation of the law or public policy. Generally, pre-nuptial agreements deal with property rights. They can address the rights of the spouses to property either owned together or separately, their ability to control and/or manage the property or to dispose of the property in the event of the dissolution of their marriage, the making of a will or trust to carry out the provisions of their agreement, the ownership rights and disposition of a death benefit from a life insurance policy, and the choice of law regarding the construction of their agreement (i.e. the agreement will be construed under California law, or the law of some other jurisdiction).
Since the state has an interest in ensuring that children are always supported and maintained by their parents, the pre-nuptial agreement's terms may not be enforceable if those terms in any way adversely affect the rights of a child to support that he/she would otherwise be owed by one or both of the parties to the agreement.
For those planning on getting married in California, prenuptial agreements may be a smart option, but they're not for everyone. Consider speaking with a California family law attorney if you have additional questions.
California Prenuptial Agreements: Statute
Family Code Sections 1610-1617