Pre-nuptial Agreement Overview

Most people know of, or have heard of Prenuptial agreements (in California the official name is “Premarital Agreement”). These agreements are also known as “pre-nups.” 

A Pre-nuptial agreement is a written contract entered into prior to marriage. Provisions of the Premarital agreement usually deal with the definition and division of property and alimony in the event of a divorce. 

While community property is defined by California law as property acquired during marriage. A statutory exception would be for property acquired by one spouse by gift or devise during the marriage.  That property is the spouse’s own separate property.   A Pre-nuptial agreement may define what constitutes community property for a couple by contract. A Pre-nuptial Agreement becomes effective upon marriage. The right to child support cannot be adversely affected by a Pre-nuptial agreement. 

In order to be valid, a Pre-nuptial agreement must meet at least the following minimum requirements:

1. It must be a written agreement signed voluntarily by the parties.                                                                                                   

2.   Prior to the signing of the prenuptial agreement, each party must be provided with a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

3. Each party must be represented by independent legal counsel at the time of signing the agreement or after being advised to seek counsel, expressly waive representation in a separate writing. 

4. Prior to signing, each party must be given seven calendar days from the time of presentation of the agreement, the time he or she was advised to seek independent legal counsel, and the time the agreement was signed.

5. If one party seeks waiver of alimony in the Pre-nuptial agreement by another party,  the latter party must be represented by independent counsel or the waiver of alimony cannot be unconscionable. 

This list is not intended to be exhaustive. It is clear that counsel should be consulted before preparing a Pre-nuptial agreement.  A Pre-nuptial agreement is not enforceable if a spouse did not sign the agreement voluntarily or executed an unconscionable agreement.

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