Written by attorney Donald Andrew Hansen

Tips for creating a prenuptial agreement in California

What can a prenup in California do?

Prenuptial agreements are powerful legal instruments that, unless successfully challenged and overturned, will play a major role in determining the distribution of property when the marriage ends.

Premarital agreements are often used in first marriages where one spouse has acquired property or wealth prior to the marriage, or where a substantial family inheritance is anticipated. In second marriages, or later-in-life marriages, a prenup can protect separate property and greatly reduce the cost of legal fees in probate or divorce battles over the property.

Protecting one's property for children of a former marriage is another common reason for a premarital agreement. A well-drawn premarital agreement can prevent unseemly and expensive lawsuits between spouses when they divorce, but it can be even more useful in protecting a surviving spouse and the deceased's heirs from those who would challenge a will. It can also protect one party from his or her spouse's attempts to set aside gifts that the party may have made to his/her children or other third parties during marriage.

Special rules for California prenups

In California, the Uniform Premarital Agreement Act was tightened dramatically after the Barry Bonds dissolution, which many thought was unfair to his Swedish-born wife. The strict and detailed requirements for an enforceable prenuptial agreement include the following:

  • Both spouses must be independently represented by separate attorneys, unless a spouse is advised to seek legal representation and waives hiring an attorney in a separate written document.

  • Both spouses must have at least 7 calendar days from the time they are first presented with the agreement to study and consider it before signing.

  • If one spouse is not represented by an attorney (and has signed a separate written waiver) he or she must be fully informed in writing, prior to signing, of the terms and basic effect of the agreement as well as the rights and obligations he or she is giving up by signing the agreement.

  • The written explanation of the agreement and the agreement itself must be in a language which the unrepresented spouse is "proficient."

  • The spouses must make a fair, reasonable, and full disclosure of their assets and debts, unless a spouse waives financial disclosure in writing.

  • Waiver of child support for the parties' children will not be enforced (best interests of the child prevail).

  • Spousal support waivers are enforceable, but only if the spouse waiving support is represented by an independent attorney and the waiver is not "unconscionable", both at the time the premarital agreement is signed and at the time it is enforced.

Should I get a prenup?

Despite these requirements and restrictions, premarital agreements remain viable tools for a couple approaching marriage, if they are carefully prepared. But an ill-prepared prenuptial may be worse than none at all, as it gives a false sense of security and can lead to misguided decisions. A knowledgeable and experienced attorney should be employed in preparing a marital agreement that has the strongest possibility of later standing up in probate or divorce court.

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