Premarital agreements (also known as prenuptial agreements or “prenup” for short) are “agreement(s) between prospective spouses made in contemplation of marriage and to be effective upon marriage.” See California Family Code §1610. In layman’s terms, a premarital agreement should be viewed as a contract between the parties that dictates each spouse’s property rights and responsibilities in case of dissolution. In our first Harris Family Law Firm blog post, we wanted to take some time to provide more information about the extent and limits on California prenuptial agreements.
What is Required for a Premarital Agreement in California?
The California Family Code states that “a premarital agreement shall be in writing and signed by both parties.” See California Family Code §1611. In actuality, premarital agreements require much more than a simple signed writing in order to be protected from attack in the case of dissolution. Additional considerations a party contemplating a premarital agreement should consider include:
- The party against whom enforcement is sought must provide “fair, reasonable, and full disclosure of the property or financial obligations of the other party.”See California Family Code §1615(A). At Harris Pallaschke Law Firm, we ensure that both parties to a premarital agreement have complied with this requirement by outlining all assets and debts the parties have before drafting the agreement.
- A party signing a premarital agreement should be represented by independent counsel. If the party signing the agreement does not wish to retain counsel, he or she must waive this requirement in a separate, signed writing. See California Family Code §1615(c)(1).
- A party signing a premarital agreement must be given at least seven days to review the premarital agreement and seek the advice of independent legal counsel. See California Family Code §1615(c)(2). If you are contemplating a premarital agreement, we recommend drafting and finalizing your premarital agreements at or around the time you send out a “save the date” for your wedding.
What Terms Can a Premarital Agreement Cover?
Premarital agreements in California allow great latitude for the parties to determine what assets will or will not be covered by the premarital agreement. Ordinarily, premarital agreements dictate how the court should view community property in case of dissolution. If you own assets such as a home, business, stocks, etc., a premarital agreement can outline exactly how these assets should be divided in case of dissolution. See California Family Code §1612(a)(1). Even then, there are a number of caveats to this general rule.
- Parties cannot contract to pay zero child support in a premarital agreement. See California Family Code §1612(b).
- Parties to a premarital agreement cannot agree to waive spousal support unless represented by independent legal counsel. Even then, an agreement to waive spousal support will not be enforceable if the court deems this waiver as unconscionable at the time of enforcement. See California Family Code §1612(c).
Can a Premarital Agreement be Revoked?
A premarital agreement provides each party peace of mind to determine division of assets upon dissolution. Even then, a premarital agreement is not irrevocable. A premarital agreement can be amended or revoked through a written agreement signed by both spouses. See California Family Code §1614.
Do I need to Hire a Family Law Attorney to Draft my Premarital Agreement?
Premarital agreements require substantive and procedural hurdles that family law attorneys are prepared to accommodate. If you are serious about a premarital agreement, we recommend enlisting the help from an experienced family law attorney to ensure your premarital agreement protects the assets you want protected in case of dissolution. Harris Family Law Firm has the experience and expertise to draft fair, reasonable, and enforceable premarital agreements. Harris Family Law Firm can provide full service representation, from your free initial consultation to drafting, negotiating, and signing of your agreement. Contact us to set up your free initial consultation.
This article is not legal advice and is not intended to apply to your specific situation. Every family law case has different facts which may affect the ultimate outcome of your case. This article does not create an attorney-client relationship between the Harris Pallaschke Law Firm, APC. and the reader. If you have additional questions, please schedule a free consultation to speak with one of our experienced family law attorneys.