A prenuptial agreement is a contract between two people planning to marry setting out how they intend to treat money and assets during marriage. It can also lock in the finances in a divorce – who will get what property and any agreement on spousal support. Child support cannot be included.
Is a prenuptial agreement a prudent way to plan for the future or a sure way to kill a romance? Every couple contemplating marriage will have to decide on the answer to that question themselves. But if you decide that a prenuptial agreement is the way to go, you'll be glad to know that prenups are perfectly legal in California – as long as you know California prenuptial agreement law and follow it.
What Is a Prenuptial Agreement?
In the United States, about half of marriages end in divorce and, in California, that number might be 10 percent higher. Few couples enter a marriage expecting it to end in divorce, so in most cases, divorces throw the couple's finances and lives into turmoil. Given the odds, it's easy to make a strong argument for considering signing a California prenuptial agreement before a marriage takes place.
A prenuptial agreement is a contract between two people who are planning to marry. It sets out how they intend to treat money earned during their marriage or treat real property ownership. It can also set out the finances in a divorce – who will get what property, and sets out their agreement regarding spousal support.
California Prenuptial Agreement Requirements
California prenuptial agreements must comply with the Uniform Premarital Agreement Act, enacted in the state in 1986. Generally, under the law, written prenuptial agreements that are signed by both parties automatically become effective when a couple marries.
Although a couple can determine their property rights in the agreement, it cannot restrict child support or child custody and visitation matters. These will be determined by a California family law court according to the best interests of the child.
Can a California Prenup Set Future Spousal Support?
Although there is nothing illegal about including spousal support in a prenup agreement, it's possible that these provisions will not be enforced. First, California prenuptial agreements made after 2002 will only be enforced against a spouse if that spouse:
- Was given complete and accurate information about the other person's finances before signing,
- Received a copy of the prenup at least seven days before signing it, and
- Was represented by a separate attorney at the time the agreement was signed.
The latter requirement can only be waived if the spouse: 1) had written information correctly describing the effect of the agreement, and 2) signed a separate document acknowledging receipt of the information, identifying the person who provided the information and expressly waiving the right to an attorney.
Even if all of these requirements are met, a court will not enforce provisions in a prenup relating to future spousal support unless the spouse had employed an independent attorney
What Cannot Be Included in a Prenuptial Agreement
In California, a couple cannot include certain terms in a prenup, or, if they try, the terms won't be legally enforced. Nothing illegal or against public policy will be enforced, including any waiver or limitation of child support. However, a couple can agree to provide child support in an amount greater than that required by court rules.
California courts will not consider fault in a divorce property division, so any agreement that punishes a spouse for misbehavior, such as infidelity during the marriage, usually won't be enforced. For example, a provision that a spouse who cheats during a marriage will have to pay the other a sum of money or waive spousal support is unlikely to be enforced by a California court.
Certain rights cannot be waived in a prenuptial agreement because of the workings of federal law. For example, if one spouse has earned the right to an ERISA-governed employee benefit plan, the other spouse cannot wave a right to share in the plan in a prenup. Federal law provides that those rights can only be waived by a spouse, not a prospective spouse. The couple will have to wait until they are married and then complete a waiver document.