California Prenuptial Agreements

California’s family laws permit couples to make premarital agreements, also known as prenuptial agreements. Although this can seem like planning your divorce before you get married, these agreements give future spouses more control over their property division if the couple divorces.

California courts require prenuptial agreements to meet certain basic validity requirements. The Uniform Premarital Agreement Act is codified into California law as Family Code Sections 1610-1617. The state law explains what a California prenup can and cannot include.

A prenup is a legal document. Couples considering drafting one should consult a family law attorney to protect their property rights in the event of a divorce.

California Prenuptial Agreements

California is a community property state. This means that in a divorce, the assets and debts get divided 50/50 unless the spouses have made other legal arrangements. One way to avoid community property laws is to agree before marriage to divide property in a certain way. A postnuptial agreement is also possible if you did not make a prenup.

To be valid, a California prenuptial agreement must meet the legal requirements under California law. These include:

• The agreement must be in writing
• Both parties must receive complete financial information about the other party before signing
• Both parties must have at least seven days to review the agreement and to have their own attorney review the document
• Both parties must sign the document

Each party has the right to have a separate attorney represent them during negotiations and review the agreement. Changes or revocations must be in writing. Although a notary is not required, it is a good idea, especially in high-value marriages.

What a Prenup Agreement Can Include

Your prenup agreement may contain terms about any aspect of the divorce process, such as:

• Property rights, including the division of real estate, separate property, and valuables
• Business rights, if you and your spouse own a business together
• Premarital debts and assets
• Spousal support (alimony), including waiver or limitation of payments
• Estate planning and inheritance rights

This is not an exhaustive list, as other provisions may apply.

What a Prenup Agreement Cannot Include

A prenuptial agreement cannot include anything that violates public policy. Lifestyle penalties (“If my spouse gains weight, I have the right to divorce them”) are not permitted. Anything considered grossly unfair or unconscionable can make the agreement unenforceable, even if the parties agreed to the terms.

Courts may not consider anything involving future child support or child custody. You can include it, but courts always consider the child’s best interests at the time of the divorce, not the prenuptial agreement.

Minor Prenuptial Agreements

Although minors can marry in California under some circumstances, not all minors can write or sign prenups. Under state law, only emancipated minors or those who are otherwise capable of legally entering into marriage can lawfully sign a prenup.

Invalidating a Prenup

Prenuptial agreements can save couples a lot of time during a divorce if both spouses have been honest and forthcoming. A prenuptial agreement requires full disclosure of each party’s financial situation and transparency throughout the negotiation process. Failing in this process can invalidate the agreement. Common grounds for invalidating the prenup can include:

• Failure to disclose financial information, especially additional liabilities that become part of the spouse’s debts
• Evidence of fraud, coercion, or duress at the time of signing, such as a bride or groom receiving the finalized prenup on the morning of the wedding
• Unconscionability, or grossly unfair terms that favor one party over the other
• Lack of opportunity to consult an independent attorney before signing

Judges may also invalidate agreements that violate public policy or contain illegal terms.

Related Resources

• Sample Premarital / Prenuptial Agreement
• What Can and Cannot Be Included in Prenuptial Agreements
• California Marriage Law
• Pros and Cons of Premarital Agreements

Get Legal Advice From a California Family Law Attorney

Prenuptial agreements have good and bad points. They’re not necessary for all marriages. If you think you might need one in your upcoming marriage, consult a California family law attorney for additional information and advice.