When a couple decides to enter into a prenuptial agreement (a.k.a. prenup), they are taking precautions in case of a divorce. It helps protect the couple’s assets and income and from having to follow the default rules of division of assets in California. Many people think the idea of a prenup is ugly and that it reflects distrust in a relationship. However, it is actually a logical way to approach finances and provides set rules before they get married. Prenuptial agreements are known as premarital agreements under the California Uniform Premarital Agreement Act. People having been entering into these premarital contracts for over 200 years, successfully providing terms for settling property and financial rights.
This webpage is written to provide you with basic information about premarital agreement, but it does not replace legal advice from an attorney. Talk to a prenup lawyer about your specific situation or continue reading to learn about the following topics:
- Prenup Agreement Basics
- Community Property
- What does a prenuptial agreement do?
- What can’t a prenuptial agreement do?
- Do you need a prenuptial agreement?
- Should you hire a prenup lawyer?
Prenup Agreement Basics
“Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. California Family Law Code § 1610(a)
By the statute written above, a premarital agreement is an agreement between an engaged couple. A premarital agreement must be agreed upon, voluntarily, by both parties or else it will not be enforced. The California Uniform Premarital Agreement is written to protect both parties and ensure that the prenuptial agreement was signed with full financial disclosure, conscionably, and with both parties fully understanding the provisions of the contract.
California also requires that at least seven days passes from when a party is first presented with the agreement and when the agreement is signed. This time allows the served party to properly review and receive independent counsel before entering into the prenuptial agreement.
To be enforceable, there are a few rules from the family code section on prenup agreements:
- A prenuptial agreement has to be in writing and signed by both parties
- The signed prenup agreement becomes effective after the couple is married (§ 1613)
- The party being served the agreement was not forced or coerced into signing
There was a case where a couple was married in Egypt in 1974, then moved to the United States. They divorced after 17 years of marriage. The husband brought forth an agreement that was constituted as a prenuptial agreement in Egypt, signed by himself and the bride-to-be’s father, as her representative. The Orange County Superior Court did not recognize this document as a legitimate prenuptial agreement, and thus the community property law of California kicked in. It’s absolutely necessary that you make sure the prenuptial agreement is entered into correctly by both parties.
California is a community property state, which means it is presumed that all money and property gained during a marriage belongs to both parties. Even if only one spouse works during the marriage, the income is equally shared by both husband and wife. Any debt incurred during the marriage is also equally shared. To avoid having to split what is rightfully yours, a premarital agreement can override the state’s community property law.
What Does a Prenuptial Agreement Do?
A premarital agreement is drafted to protect a person from problems that may come from divorce or death. It lays out the terms of what assets are considered as community or separate property. It can also predetermine the division of these assets if the couple faces divorce in the future. Although child support cannot be included in prenuptial agreements, spousal support can. The terms of spousal support or the waivers of spousal support can be included. As many as 1-in-10 couples enter into a prenuptial agreement for these reasons:
- To gain control of their financial future
- To define and communicate with each other about money
- To provide peace of mind about an unknowable future (divorce)
- To prevent a messy divorce
If you want to learn more about divorce, visit our divorce attorney page.
What Can’t Premarital Agreements Do?
A prenup does not issue provisions for child support or child custody. You can’t predetermine how much child support would be paid, in case of a divorce. It is also not a contract to include marriage behavior clauses. No prenuptial agreement can obligate someone to act a certain way, such as: what household chores need to be done, frequency of sexual relations, or penalties for adultery. Unbelievably, some people have even tried to negotiate weight maintenance as a clause in prenuptial agreements. This is not what the prenuptial agreement is meant to do, besides it is likely unenforceable because violations would be too difficult to prove.
Do You Need a Prenuptial Agreement?
When weighing the pros and cons of having a prenuptial agreement, you’re the one that has to make the ultimate decision on whether you should have a prenup. Every person’s situation and priorities are different, only you know what is best for you and your future spouse. There are many reasons a person may want to have a prenuptial agreement, some of those reasons being:
- They have a significant amount of wealth
- They have children from a previous relationship
- Those who are entering into a marriage and will benefit from having strategic prenuptial agreements
- They own real estate
- They earn more than $100,000 a year in income
- They have beneficiaries or heirs of estate who are not their partner
- They have more than $50,000 in assets
- They own a part of a business
A benefit of having a prenuptial agreement is that you’ll be less likely to get into a messy divorce court case. You’ll already have the terms of finances and assets laid out. The emotional and financial ramifications will be lessened. Of course, things do change after marriage so you may want to change the terms of the premarital arrangement. Section 1614 allows for the prenuptial agreement to be changed or revoked by a written agreement, again signed by both parties.
What Can Be Included in These Agreements?
Once you talk to your partner and you both decide to move forward with the prenuptial agreement, you’ll need to think about what topics you want to cover in the agreement. It’s recommended that both parties think about these things separately and create a list of what each one wants to cover. Some topics that others have put into their prenuptial agreements are:
- Separate businesses
- Retirement benefits
- Distinguishing property that is separate or joint
- Making sure you’re not responsible for your partner’s debt
- Establishing family property or making provisions for children from other marriages (not including child support or custody)
- Management of household bills
- Joint bank account management
- Credit card spending and payments
- Contributions to savings
- An arrangement to put one or the other spouse through school
- Property distribution
- Life insurance
- Settlement of potential disagreements
Should You Hire a Prenup Lawyer?
Getting a prenuptial agreement is not a romantic thing to enter into a marriage with, but it’s practical and can save you from a lot of headaches if you do get divorced later on. If you have a assets and property worth protecting, talk to a prenuptial agreement lawyer to help you draft an agreement. A family law attorney can help you evaluate your situation and make recommendations.