Approaching a new marriage with a solid financial plan is a priority for many California couples. A premarital agreement, also known as a prenuptial agreement or “prenup,” is a common mechanism used to provide financial clarity as a couple enters this new phase of life. In this document, the couple can arrange ownership of property, dictate how future assets will be handled, and articulate spousal support arrangements in the event of a divorce, separation, or, for some provisions, death. Premarital agreements can address separate versus community property, the ability to manage property, the beneficiaries of a life insurance policy, and which state law will govern the agreement.
A premarital agreement typically deviates to some degree from the default community property laws of the state. With most issues, this does not cause any problems. Some laws and policies, however, are not negotiable. A qualified family law attorney can help customize an enforceable premarital agreement and ensure that it complies with state law and public policy.
Who Needs a Premarital Agreement?
Premarital agreements are not always necessary or attractive to marrying couples. Young couples with few assets, for example, might not want or need a premarital agreement. But for couples who are entering the marriage with significant assets, or for those who have children from a prior marriage, the document is a very practical tool. It can also be relevant to individuals who have an interest in a family business at the time of the marriage. In many cases, prenuptial agreements provide guidance for the couple and help protect them against messy, expensive future litigation.
How is an Enforceable Premarital Agreement Created in CA?
If a premarital agreement does not comply with certain provisions of California law, the agreement can be struck down by a family court judge and determined unenforceable. In order to create an enforceable premarital agreement, certain guidelines should be followed:
- The agreement must be in writing and signed by both parties.
- If the agreement seeks to control or waive future spousal support, the party who otherwise would receive support must be represented by their own independent attorney at the time of signing.
- Seven calendar days must elapse from the time that (1) each party receives the agreement and is advised to seek counsel and (2) each party signs the agreement.
- Each party ideally should be represented by a different lawyer. If either party is not represented by an independent attorney, they must be advised to retain one. If a party declines representation, the party must sign a waiver in a separate document from the premarital agreement.
- Each party must enter the agreement voluntarily with full knowledge and understanding of the terms of the agreement.
- The terms cannot be unconscionable, meaning unfair or too one-sided.
- Any evidence of fraud, duress, undue influence, the incapacity to sign, or improper disclosure of property or financial obligations could render the agreement unenforceable.
- The agreement cannot adversely affect the rights of a child to receive parental support.
These guidelines provide a basic foundation for an enforceable premarital agreement in California. However, there are additional laws and public policies that should be consulted before drafting a comprehensive, legally enforceable document. A competent family law attorney can counsel you and check the document to ensure legal compliance.
How can a Premarital Agreement be Modified in CA?
After marriage, a premarital agreement can be amended or revoked. However, any amendments or revocation must be executed with the consent of both parties, and only by a written agreement signed by both parties. In order to revoke or amend the agreement, neither party is required to offer up anything of value to the other party.
Call Family Law Attorney Jaime Kissinger for a Customized Premarital Agreement
For couples who are considering a premarital agreement, proper legal representation for both sides is highly advisable. Attorney Jaime Kissinger can meet with you to determine the proper and legally enforceable parameters of a premarital agreement and can draft a customized prenuptial document that addresses your concerns. If you or your spouse are in the Contra Costa, Solano, or Alameda areas, contact Jaime Kissinger Attorney at Law today for an initial consultation and timely legal advice.