A prenuptial agreement, or prenup, is a legal document that outlines how assets, debts, and other financial matters will be handled during and after a marriage. In California, prenuptial agreements are governed by the Uniform Premarital Agreement Act (UPAA), and they must meet specific legal requirements to be valid and enforceable. If you’re considering a prenup, this guide will walk you through the steps to create one in California.
What Is a Prenuptial Agreement?
A prenuptial agreement is a legally binding contract created by two individuals before they marry. It can address:
Division of assets and debts in case of divorce.
Spousal support (alimony).
Protection of separate property.
Financial responsibilities during the marriage.
Estate planning issues, including inheritance rights.
A prenup is not only for the wealthy—it’s a practical tool for anyone who wants to clarify financial expectations and protect individual interests.
Steps to Get a Prenup in California
1. Decide If a Prenup Is Right for You
Before drafting a prenup, both partners should discuss their financial goals and concerns. Some common reasons to get a prenup include:
Protecting assets acquired before marriage.
Clarifying debt responsibilities.
Protecting family-owned businesses or inheritances.
Ensuring financial security for children from previous relationships.
Open and honest communication about financial matters is essential at this stage.
2. Hire Separate Attorneys
California law requires that both parties have the opportunity to consult with independent legal counsel. While you can technically draft a prenup without attorneys, having legal representation ensures that the agreement is fair, legally sound, and enforceable.
3. Disclose All Assets and Debts
Full and fair disclosure of assets, liabilities, income, and expenses is critical. Failing to disclose financial information can render the prenup invalid. Both parties should provide a comprehensive list of:
Real estate.
Bank accounts.
Investments.
Debts (credit card debt, loans, etc.).
Personal property of significant value (e.g., cars, jewelry).
4. Draft the Prenuptial Agreement
Work with your attorney to draft the prenup. Key elements of a California prenup include:
Identification of separate property: Clearly define which assets will remain separate and not be subject to division in case of divorce.
Division of community property: Specify how marital assets and debts will be divided.
Spousal support terms: State whether spousal support will be waived, modified, or predetermined, keeping in mind that courts may not enforce unfair spousal support provisions.
Choice of law: Designate California law to govern the agreement.
5. Review the Draft Together
Once the draft is complete, both partners should review the document together and discuss any changes or concerns. This step ensures mutual understanding and agreement on all terms.
6. Wait 7 Days Before Signing
California requires that each party be given at least seven days to review the final draft of the prenup before signing. This “cooling-off” period prevents rushed decisions and ensures both parties have time to fully consider the agreement.
7. Execute the Agreement Properly
For a California prenup to be valid, it must meet the following requirements:
Be in writing (oral prenups are not enforceable).
Signed voluntarily by both parties, without coercion or undue pressure.
Include full financial disclosure.
Be notarized to confirm authenticity.
8. Retain Copies of the Agreement
Both parties should keep a signed and notarized copy of the prenup in a safe place. It’s also wise to provide your attorney with a copy for their records.
Avoiding Common Pitfalls in California Prenups
To ensure your prenuptial agreement is enforceable:
Avoid including terms that violate public policy (e.g., waiving child support obligations).
Do not hide assets or debts.
Ensure the agreement is fair to both parties. If a court deems the prenup unconscionable, it may not enforce it.
Ensure both parties have adequate time and legal representation during the process.
When to Start the Prenup Process
It’s best to begin discussing and drafting a prenuptial agreement well before your wedding. Rushing the process can lead to mistakes, misunderstandings, or claims of coercion, which can jeopardize the enforceability of the agreement.
Final Thoughts
A prenuptial agreement can provide peace of mind and financial clarity for both partners. By following the steps outlined above and ensuring that your prenup complies with California law, you can protect your interests while building a solid foundation for your marriage.
If you’re considering a prenup, consult an experienced California family law attorney to guide you through the process and ensure your agreement is tailored to your needs.
Contact the top-rated California trust and probate attorneys Moravec, Varga & Mooney today to schedule a telephonic consultation. Have questions, call (626) 460-1763 or email LV@MoravecsLaw.com.
Southern California Probate Lawyer Serving all counties in California, including Los Angeles, Riverside, San Bernardino, Sacramento, Santa Cruz & Beyond.
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