Thakur Law Firm, APC
Prenuptial Agreements in California: What You Need to Know Before Tying the Knot
No one goes into a marriage in good faith expecting it to end, so the idea of a prenuptial agreement may not be the most romantic thing before you tie the knot.
But most people don’t realize that prenuptial agreements are in place to protect you and your spouse – on your own terms. Without a prenuptial agreement, California’s family laws will make decisions for you and your assets. So in some ways, the state already has a prenup for you in place under state law. By creating your own prenup, you take control of your matrimonial future.
Whether your assets are in the form of real estate, personal property, business interests, or digital assets, you and your spouse can benefit from a prenup. A prenuptial agreement can ensure that any assets acquired before your marriage (and any earnings or income that flow from those assets) will remain separate property in case you end up divorcing.
By communicating and memorializing your wishes from the beginning, a prenup can help you and your spouse avoid getting tangled up in painful fights over property later. A good family lawyer can guide you through the process to build a solid foundation for your future together.
Are Prenuptial Agreements Legally Enforceable in California?
California’s Uniform Premarital Agreement Act (UPAA) lays out:
How to make a prenuptial agreement legally enforceable, and
What terms can and cannot be included in a prenuptial agreement.
An experienced family law attorney will have a good understanding of the UPAA so that they can protect your interests in a way that holds up in court even decades down the line.
Specifically, the UPAA requires that a prenup meet the following standards to be enforceable:
Both parties must enter the agreement voluntarily – you cannot enter into a valid agreement that is coerced, forced, or under duress
Both parties must fully disclose their financial status to each other, including all debts, assets, income, and financial obligations
The terms of the prenup must be fair and reasonable at the time the agreement is enforced – any provisions that are deemed unconscionable or unjust can be invalidated or modified by the family court overseeing your case
You are allowed to change, modify, or revoke parts or all of your prenuptial agreement, but you must do so in writing signed by both parties
You can waive your right to spousal support or alimony in a prenup – however, this must be done so knowingly and voluntarily and with your own independent lawyer
You and your spouse do not need separate attorneys to create a prenup, but the UPAA strongly recommends that both sides have their own representation independent of each other. You must have at least one week to find legal counsel to represent you.
If you want to change the terms of your prenup after you get married, you can create a postnuptial agreement to reflect your changing wishes or life circumstances.
What Can Be Included in a Prenuptial Agreement in California?
You can think of a prenuptial agreement as a contract between spouses. However, the terms are not a free-for-all. Certain topics are off the table and cannot be negotiated in a prenup.
The following prenup terms would not be enforceable in the case of divorce:
Waiving your right to spousal support if you don’t have your own independent attorney representing you in the negotiations
Any terms or instructions relating to child custody or child support
Terms that require either spouse to act unlawfully or illegally
Terms that are especially unconscionable or one-sided
Non-financial terms of conduct or personal preferences (for example, demanding that either spouse must clean, cook, or exercise a certain amount)
Infidelity clauses generally cannot be enforced
Terms that encourage divorce in any way
Your prenuptial agreement is only effective after you get married. If you don't get married after signing the agreement, then your prenup will never be effective or enforceable.
How Do Prenups Affect Property Division in California?
A prenup can dramatically affect how your property gets divided if you and your spouse get divorced. A thoughtfully created prenup can help divide your property according to both of your wishes without having to battle out the terms in a contentious divorce. In your prenup, you can:
Define and preserve your separate property as your own – This includes assets and personal property that you owned before your marriage and any inheritances or gifts that you receive during your marriage. In the case of a divorce, you get to keep 100% of your separate property instead of splitting it 50/50 with the rest of your community property.
Divide your community property according to your specific wishes – Instead of splitting all of your shared assets and debts acquired during your marriage 50/50 in the case of a divorce, you can establish a different, even unequal, distribution scheme.
Characterize specific assets as community versus separate property – California state law may characterize certain marital assets or debts as community property, but you can choose to distinguish those assets as separate property in your prenup. This helps prevent fighting over these assets during a divorce.
Protect your assets and investments in the case of a divorce – In your prenup, you can outline how you want certain assets or investments to be handled in your divorce. For example, you can protect assets like a family business or intellectual property rights by assigning them to one spouse instead of making them subject to division.
Determine who’s responsible for financial debts and obligations – You can agree on how you will split certain debts in case of a divorce. By setting out these terms ahead of time, you can avoid taking on debts incurred by your spouse during your marriage.
Prenuptial agreements are created with the primary purpose of handling the finances of a marriage, which makes them perfectly suited for property division. Your prenup can help save you time, money, and headache in case the worst ever happens.
At Thakur Law, our experienced family law attorneys can help create prenuptial terms that reflect the vows you and your spouse make to each other. Contact us or call us now at (714) 772-7400 to get started on your prenup and set up your marriage for success.