Is It Possible to Revoke a Premarital Agreement in California?

Flicker, Kerin, Kruger & Bissada LLP

Prenuptial agreements, also called premarital agreements, are becoming increasingly common. The average age of a couple at the time of marriage is increasing, so many couples have significant pre-marriage assets (premarital separate property). The same is true for couples who are getting married for the second time or who have children from a previous relationship that they would like to set their assets aside for. A prenuptial agreement can be used in many instances to satisfy a couples’ specific goals, which may differ from standard California law if the couple’s marriage should end.  

Still, a premarital agreement that meets the couple’s requests at the time of marriage may not serve their needs a decade later. As the number of premarital agreements rises, so does the number of couples looking to revoke or update their outdated premarital agreement. 

If you signed a prenuptial agreement before marriage and wish to make a change, it is possible to revoke or modify your agreement even if you and your spouse are married. Below, is an explanation of how prenuptial agreements may impact your rights, why you may want to revoke or modify them, and how to approach the process to achieve the best possible outcome.

Impact of a Prenuptial Agreements on a Couples’ Rights

A prenuptial agreement can be used to fundamentally alter both spouses’ rights upon marriage. Without a contract in place, couples are subject to the standard laws regarding marital property and support rights in the state where they marry. 

For example, California is a community property state, meaning spouses are automatically granted joint ownership of marital assets. Furthermore, California law generally dictates that each spouse has the right to half of the community property upon divorce, regardless of who earned or acquired it. You should contact an experienced family law attorney if you have questions about the characterization of marital assets/community property.

Premarital agreements Prenuptial contracts can be used to alter a spouse’s rights and responsibilities. Equitable and enforceable contracts can supersede community property laws, allowing couples to clarify which assets will be joint property and which will remain separate. 

Additionally, these contracts allow couples to set terms for a theoretical future divorce. They may include clauses regarding spousal support, the division of particular assets, and other financial concerns. Outside of child custody and child support, a strong prenuptial agreement can significantly simplify the process of filing for divorce by answering crucial questions in advance. As long as a prenuptial agreement is legally enforceable, it will take precedence over other laws that normally govern matters related to property division and spousal support.

Why Couples May Choose to Change or Revoke Premarital Contracts

Even the best-drafted premarital contract cannot account for every future possibility. There are many reasons why a couple may decide to alter a prenuptial agreement, including:

  • New businesses: If either spouse starts a new business or other significant venture not addressed in the original agreement, altering the terms or creating a whole new postnuptial contract may be worthwhile.
  • Changing life plans: If the original contract was drafted so that one spouse would remain home and care for the house, it may not suit future needs if both spouses decide to work or vice versa. In that case, the couple may choose to update the old contract or revoke it entirely. 
  • Unexpected health conditions: Most premarital contracts are drafted with the assumption that both spouses will remain able-bodied and healthy for the duration of their relationship. If this is not the case, spouses may want to revoke the old contract and implement a new one to address respective health issues.
  • Infidelity: Some couples choose to revoke and replace prenuptial agreements after instances of infidelity. This allows the couple to rebuild trust and guarantees the faithful partner that the other person is dedicated to repairing the relationship.

How to Change a Prenuptial Agreement After Getting Married

If you are considering altering or revoking a prenuptial agreement, it is important to approach the process correctly. Any change to a premarital agreement may alter a spouse’s rights within the marriage. A modification to a premarital agreement must be made carefully to ensure it takes precedence over the previous version and is legally valid and enforceable. The following steps can assist in accomplishing the goals for a revision or revocation: 

  • Talk to your spouse about your goals for the change. Both you and your spouse should clearly understand your goals for altering your prenuptial agreement before proceeding. You can only adjust the contract if you both consent to the change, so you should take care to ensure you are on the same page.
  • Speak with experienced attorneys. It is considered best practice for both spouses to seek independent legal counsel when drafting or revising a prenuptial contract. This ensures you both receive unbiased legal counsel. Discuss your goals for the contract independently and as a group.
  • Review your current agreement. With your attorneys, read your current contract to ensure you are clear on your existing rights and responsibilities and what you want to change. 
  • Draft and review the new contract. Your attorneys will use your feedback to draft a new contract that reflects your preferences. Review this carefully to confirm it accomplishes your goals, including revoking the previous agreement. If necessary, request additional revisions to ensure the contract fits your needs.
  • Sign the final version and have it notarized. Once you and your spouse are satisfied with the terms of your revised contract, you will sign it in front of a witness and have the final copy notarized. As long as it was drafted per the law, it should now supersede your previous marital contract.

Discuss Altering Your Prenuptial Agreement With a California Family Law Attorney

If you are considering revoking a prenuptial agreement or making other alterations, you should seek skilled legal counsel. At Flicker, Kerin, Kruger & Bissada LLP, our expert attorneys have spent decades guiding clients through complex family law matters of all varieties, including modifying marital contracts. Schedule your consultation with our family law firm to discuss your needs and discover how we can assist you. 

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