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Pre-Nuptial Agreements

In California, many who are planning to get married soon make the formation of a prenuptial agreement a part of their preparation process. By deciding ahead of time on various financial matters in the event of a spouse's passing away, or a divorce, many potential problems and disputes are averted.

No one wants to go into a marriage thinking about the possibility of it ending, but prenuptial agreements help clarify what is marital property and what is the separate property of each spouse, how property will be divided, how spousal support would be determined, and a host of other issues. It's far better to have such things decided ahead of time rather than to have to wrangle about them at a later date.

At San Diego Divorce Attorney, we have deep expertise in helping couples draft comprehensive, legally enforceable prenuptial agreements. And we also understand the details of what role these kinds of agreements can play in a divorce.

To learn more about California prenuptial agreements or for a free legal consultation on this and other family law matters, do not hesitate to contact us by calling 858-529-5150.

Requirements for a Valid Prenuptial Agreement in California

Since 1986, California has joined other states in enforcing the Uniform Premarital Agreement Act. This and other relevant California laws put some legal requirements on what can and cannot be part of a valid prenuptial agreement.

A valid "prenup," voluntarily signed by both parties, is in force at the moment a couple gets married. But any elements in it that violate the limitations placed upon marital agreements by state law, won't hold up in a divorce or at the passing of your spouse. At San Diego Divorce Attorney, we can ensure that your prenuptial agreement is 100% legally valid and enforceable and that it fully addresses all issues important to you and your future spouse.

Realize that the basic "rules" of contract law apply as much to prenuptial agreements as to other types of legal contracts in California. That means the following:

  • The consent of both parties is required.
  • That "consent" cannot result from fraud, mistake, or "undue and inappropriate influence" over another.
  • The signatures of both parties in the presence of a notary public are essential.

Also, the following additional requirements are imposed upon prenuptial agreements in order to make them enforceable:

  • Both spouses must have given and exchanged complete financial disclosures before signing the agreement.
  • There must have been a seven-day or longer delay between receiving the final form of the contract and actually signing it (this allows time for each spouse's lawyer to review the document.)
  • Each spouse must utilize a different lawyer to guide him/her through the prenuptial agreement process. However, this requirement can be set aside if you waive the right to your own attorney in a signed document and if you were fully informed of the effect the agreement would have on you.

As you can see, California imposes some strict legal strictures on how a prenuptial agreement can be validly implemented - in the interests of protecting the rights of the signers of the agreement and of any children or others who might be affected by it in some way.

What Can a Prenuptial Agreement Include?

Even if all of the requirements listed above are met, so that the process by which the prenuptial is valid; the content of it has to be valid also. The state also puts limits on what can and cannot be a part of a prenuptial agreement. At San Diego Divorce Attorney, we can help you to understand what can/cannot be included in your prenup as well as what effect anything included might have on you in the event of a divorce or the death of your spouse.

Here are three main areas often covered in prenups that are legally permissible:

1. Waiving of Right to Alimony

You are allowed to agree that no alimony will be paid in the event of a divorce. However, the enforceability of this kind of provision is limited.

If the court finds that a total waiving of spousal support would be extremely unfair, such as forcing an ex spouse to get support from a state welfare program or live in dire poverty for many years, it will likely not uphold the waiving of alimony in a prenuptial agreement.

Also, if one spouse was much more highly educated and astute on legal matters (and it appears as if he/she took advantage of his/her spouse's relative ignorance or inexperience); OR, if one spouse was not self sufficient financially when he/she signed the waiver; then the court will not uphold the agreement to waive alimony.

2. Adjustment of Property Division Matters

You can adjust what is or is not to be counted as "separate" or "marital" property by means of a prenuptial agreement. One might include a provision that a house already owned by one spouse before the marriage becomes community property instead of separate property. OR, you might do the reverse, and make what would otherwise be considered community property be the separate property of one or the other spouse.

You can also change from a 50-50 split of community property to some other scheme. Again, there could be limits on enforcement of any clause that seems "too one-sided or unfair" to the court, but many such provisions will be enforceable

3. Changes to Inheritance Rights

A prenuptial can also specify inheritance rights (even if not to the extent that a will does this.) And often, a prenup changes what the inheritance rights would have been to something else.

A common example is when one spouse who has children from an earlier marriage wants to ensure all or a specific portion of the inheritance goes to his/her child instead of his/her new spouse when he/she passes away (and that a divorce won't cancel his son or daughter's inheritance provision either.)

What Can't a Prenuptial Agreement Include?

There are also a number of specific types of provisions that a prenuptial can't legally include, such as:

1. Cancellation of Child Support Duties

A prenuptial agreement may affect how property is divided between spouses and whether or not (or how much) spousal support is paid; but, it can't touch child support, child custody, or child visitation rights.

Child support and other rights of a child cannot be negatively impacted by a marital agreement in any way or to any degree. The court retains jurisdiction here, and it will consider the best interests of the child regardless of anything in a prenuptial agreement.

You can include provisions to increase child support if you wish, but anything trying to control how a child is raised following a divorce (which school, which church, etc.) is probably not enforceable either.

2. Violations of California Public Policy

One cannot include something otherwise against state or federal law or against state public policy in a prenuptial agreement. This relates to child support (which we already covered above), but it applies much more broadly as well.

This is one of the key reasons why you need a California family law lawyer to help you write up your agreement: you need someone familiar with the law so that no laws are conflicted with by the prenup.

3. A Fault Clause That Affects Property Division or Other Matters

Some think of putting a clause in the prenuptial agreement where if one spouse cheats on the other, he/she will have to pay more spousal support OR will lose the right to spousal support. But this is not allowed in California because it is a no-fault divorce state. Any "penalty" provisions simply won't be honored by the court.

4. Alteration of the Duties of Marriage

The duties and privileges of marriage, as defined under state law, cannot be altered by a prenuptial agreement. Nor can the performance of marital duties be converted into something a spouse is to be compensated for upon divorce.

5. Terms That Tend to Encourage Divorce

In general, any terms in a prenuptial that are so lopsided as to tend to encourage or invite a divorce (potentially) are not permitted or enforceable. The exact parameters of this idea are somewhat "fuzzy" since financial changes of almost any kind could arguable do this - but, it is likely in extreme cases only that this principle would be cited to overturn an agreement or a specific part thereof.

What Can Make a Prenuptial Unenforceable?

In divorce cases, it often happens that one or more provisions of a prenuptial agreement (or even the entire agreement) are challenged by one spouse or the other, or both.

But what factors can be argued to make a pre or post nuptial agreement not enforceable in California? Here are the most common ones to be aware of:

  • Illegal provision(s). If any of the provisions in the agreement are simply not permitted in California prenuptial, they can be overturned. This includes the 5 problems we covered in the section above, and more.
  • Involuntary agreement. If either party to the agreement can be shown to have been forced, threatened, or unduly pressured into signing it, it cannot be enforced.
  • Lack of legal counsel. If both spouses used the same lawyer in going over the agreement before signing it (or if no lawyer was used at all), then the agreement can likely be set aside. If a spouse signed a waiver to independent legal counsel and met other criteria, however, that can be sufficient to uphold the prenup.
  • Lack of full disclosure of terms. If either singer of the prenuptial was not fully informed of the terms of the agreement or of the likely impact they would have on him or her, that can cancel it.
  • No 7-day wait before signing. If it can be shown that one or both spouses failed to wait a week or longer to sign the prenuptial agreement after receiving it, the agreement is not valid.
  • No legal capacity. If a party to the contract lacked the "legal capacity" to enter into such a contract, then the contract is void. That applies to both prenuptials and other California contractual agreements as well.
  • Fraudulent signing. If a spouse entered the prenuptial agreement because of fraudulent representations, it is void.
  • Undisclosed property. If a spouse hid income or property from the other spouse, this could make the property-related provisions of the prenuptial of no effect.
  • Unconscionable procedure. Besides "unconscionable" provisions that unduly favor one or the other spouse, the court can also set aside an agreement based on unconscionable procedure. If unfair bargaining tactics were used, for example, this could make the agreement unenforceable.

This is only a partial list of all the various issues that can come up and make a prenuptial agreement invalid. But you shouldn't let this intimidate you or discourage you from getting a prenup. When all of the procedural and content rules of California prenuptial or post-nuptial agreements are followed, they will be upheld by the court and enforced.

At San Diego Divorce Attorney, we have help many clients formulate a legally valid and enforceable prenuptial agreement. We have also assisted those getting a divorce in defending or overturning prenuptials or specific provisions in them. We know how to make them legally "solid" and how to identify when they are not.

It's true that it would be next to impossible to draft and establish a legally binding prenuptial agreement without the help of a good family law lawyer. But it's not true that prenuptials simply can't be made sound. 

Contact Us Today for Help

At San Diego Divorce Attorney, we have deep experience and minute legal knowledge of every area of California family law, including matters related to prenuptial and post-nuptial agreements.

We have helped numerous couples in San Diego and throughout Southern California established legally valid prenuptial agreements. We also know how to challenge an invalid one or defend a valid one that is being unfairly challenged by the other spouse in a divorce case.

For a free, no-obligation legal consultation on all things related to California prenuptial agreement law or other family law matters, do not hesitate to contact us today by calling 858-529-5150.


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