Prenuptial agreements, which are also called premarital agreements, are becoming increasingly common in California. Prenuptial agreements are growing in popularity for many reasons. A prenuptial agreement allows you to customize your marital rights instead of abiding by standard California marital laws.
A premarital agreement can help you establish ownership interest property, how you’ll divide your marital property if your relationship ends, and how spousal support will be determined. A prenuptial agreement also allows the flexibility to make agreements that otherwise may not be provided for under California law. In drafting agreements, there should still be some consideration given regarding potential enforceability concerns, which this article will highlight.
Premarital agreements must be written carefully to ensure that they meet California’s standards for enforceability, or they may not be upheld in court. There are also certain considerations regarding the specific circumstances of how the premarital agreement was bargained for or negotiated which could have an effect on the enforceability of the agreement. If you are preparing to draft a premarital contract, you should understand how these agreements work and what is required for enforceability.
California Law and Prenuptial Agreements
California laws have officially recognized prenuptial agreements since 1986 when the Uniform Premarital Agreement Act (UPAA) went into effect. This updated the California Family Code to include Section 1600, which defines what a premarital agreement is and what is required for the contract to be upheld in court. The Family Code has gone through several notable revisions over the years, namely in 2002 and 2020 so it is best to speak with an experienced Family Law attorney regarding any impacts the changes in the Family Code may have on your premarital agreement.
Under the UPAA, a premarital agreement is a contract made between prospective spouses. The contract may address topics including:
- The rights and obligations of each party regarding any property they currently own or acquire in the future.
- Their specific rights to buy, sell, or dispose of any property in the marriage
- The disposition of property after a divorce or legal separation
- The creation of a will, trust, or estate plan regarding the couple’s property
In fact, a premarital agreement can cover “Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” The only other exception is that of child custody and child support. Since these issues involve a third party who is not a signatory to the premarital agreement, these issues cannot be addressed in the agreement. Otherwise, couples can set almost any terms they like within their agreement.
Invalid and Unfair Prenuptial Agreements
While premarital contracts can address various topics, they must be valid for a court to enforce them. There are a number of reasons why an agreement may be considered invalid, including:
- Lack of a written agreement: Prenuptial agreements cannot be verbal. They must be written and signed by both parties to be valid.
- Lack of voluntary consent: Both parties must consent to the agreement and all of the provisions it includes. The entire document may be invalidated if one person is coerced into signing it. To avoid claims of duress, the parties must have the final agreement sit untouched seven days or more before signing. This was a new change in the Family Code for any premarital agreement made after January 1, 2020 and the seven-day waiting period applies regardless of whether the parties are represented by counsel.
- Lack of full disclosure: A key component of voluntary consent is full disclosure. Both partners must give each other a complete and accurate disclosure of their financial assets and other relevant concerns before signing the contract, or they cannot meaningfully consent.
- Lack of independent legal representation: Similarly, both spouses should have their own independent attorneys to provide them with unbiased legal counsel when the contract is drafted. This ensures they genuinely understand what they are signing and what they may be giving up in the process.
- Provisions against public policy: A prenuptial agreement cannot require either party to break the law or give up fundamental rights. Any clause that violates public policy will not be enforced and could render the entire contract invalid if it is not written with a severability clause.
Additionally, California judges may use their discretion to deem a prenuptial agreement “unconscionable” if it is particularly unfair. According to the precedent set in the 2013 California case In re Marriage of Facter, and most recently in the 2022 case of In Re Marriage of Zucker, marital agreements that leave one partner with most of the assets may be considered unconscionable and unenforceable. As such, it is crucial to consider whether an outside party would find your agreement unjust while drafting it.
Examples of Unenforceable Provisions in Premarital Agreements
Your attorney will help you draft a prenuptial agreement that is enforceable under California law. They will ensure you avoid provisions that would render your contract void or voidable, such as the following:
- Restricting a party’s rights to end the marriage: A premarital agreement cannot strip a person’s right to get divorced under California’s no-fault divorce laws.
- Preventing a party from receiving relief from domestic violence: A prenuptial agreement cannot restrict victims of domestic violence from taking legal action against their spouses.
- Penalizing the person who files for divorce: An agreement cannot discourage either party from exercising their right to no-fault divorce.
- Particularly unbalanced asset divisions: An agreement cannot leave an unemployed or lower-earning spouse without spousal support and without joint assets or means to support themselves.
Seek Qualified Legal Counsel When Writing Your Premarital Agreement
A well-written prenuptial agreement can be a valuable foundation for a happy and healthy marriage. If you are considering a premarital agreement with your partner, you should consult an experienced family law attorney.The knowledgeable attorneys at Flicker, Kerin, Kruger & Bissada LLP are among the most well-respected in California, recognized by state and national associations for their skills and dedication to family law. We proudly use our expertise to support our clients when drafting comprehensive and enforceable prenuptial agreements. Schedule your consultation to discuss your needs and explore how we can assist you.