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Pre & Post Nuptial Agreements Frequently Asked Questions

Do I Really Need a Prenuptial Agreement?

Not all California couples planning to marry need a prenuptial agreement, also known as a "prenup" agreement. However, you don't need to be wealthy to have a prenuptial agreement. Many couples who could benefit from a prenuptial agreement don't consider one. Here are a few reasons they should:

First, California is a community property state. Everything that goes into the marital pot is subject to equal division at divorce, whether that would be fair or not. Let's say your parents gave you and your spouse, as a wedding gift, a brand new car worth $30,000. If you divorce in a year or two, logic dictates that the car should be yours, but under California law, you and your spouse have an equal interest in it. There are numerous other examples where parties could dispute what truly is community property versus separate property.  A prenuptial agreement simply allows you to plan for property division based on what you and your spouse would consider fair and address the property items you both have prior to marriage and what would happen to those items in the event of a separation or divorce.  

The second reason to consider a prenuptial agreement in California is simply that it's far less expensive and stressful to agree on something now than it is to fight about it later. This is especially true in the case of businesses or other complex assets. Rather than spending thousands, or tens of thousands, of dollars on appraisals and legal fees in a divorce, for far less you can reach a reasoned, logical agreement on many issues to avoid potential litigation.  

Lastly, prenuptial agreements can actually help a marriage succeed. If you and your intended spouse learn to negotiate financial issues and agreements before marriage by creating a detailed agreement, you've created a blueprint for successful financial communication during marriage.

How Can I Make Sure My Prenup is Enforceable?

In order for a California prenuptial agreement to be enforceable in divorce, it needs to comply with the California Premarital Agreement Act. The Act requires three things: a prenuptial agreement must be entered into voluntarily; it cannot be unconscionable or fail to meet the disclosure requirements of the Act; and it must not be against public policy. 

"Voluntary" has a specific legal meaning: the person against whom enforcement of the agreement is sought must have had independent legal counsel before signing, or must have waived that right. In order to waive the right, the person must have received complete written information about the terms and effect of the agreement, and signed a separate document acknowledging receipt of that information and waiving the right to an attorney.  There must be a minimum of seven days between the date the agreement is presented to the person being asked to sign it and the day it is actually signed. Other circumstances may also be considered when determining whether a prenuptial agreement was signed voluntarily, such as whether the party who presented the agreement threatened to call off the wedding if it was not signed. 

"Unconscionable" means that enforcing the agreement would be very unfair; just how unfair may require a court to decide. "Against public policy" means something that violates the interests of society, such as enforcing a prenuptial agreement that would cause one spouse to become homeless or an agreement that would leave the couple's child without support. The rights of a couple's children or future children cannot be waived in a prenuptial agreement or otherwise.

The best way to make sure a California prenuptial agreement will be enforceable is to have it prepared by a qualified California family law attorney well in advance of the proposed wedding, and to be sure the person being asked to sign it chooses his or her own attorney to review it.

San Diego Bar AssociationSection of Family LawCalifornia State Bar Family Law American Bar Association Avvo Clients' Choice 2014