If you’re getting hitched in sunny Cali, there are a few important things you need to know! First and foremost, don’t forget to add your prenup to that wedding planning to-do list. California has some pretty strict rules for prenups so it’s important that you’re fully up to speed before crossing this item off of your list.
What is a prenup and do you need one?
A prenup is a legal contract between a couple who plans to marry. It must be signed, sealed, and delivered before the wedding. The agreement allows you and your partner to decide how property and assets will be treated during your marriage and also streamlines divorce, should that ever occur. Contrary to popular belief, prenups are not just for the rich and famous. Prenups can be helpful for all couples! One of the biggest benefits prenups provide is getting on the same page with your partner and making decisions that work for you both.
California Prenup Considerations
Prenups laws vary by state and California’s laws can be a little tricky. Minor missteps could lead to your prenup being invalidated down the road. But don’t worry! We are here to walk you through all the things you need to know before entering into your California prenup.
1. Timing
This is important in California. Generally, it’s a good idea to get your prenup finalized and signed well in advance of the wedding. This ensures that both parties have time to read, understand, and think over all of the prenup terms. It also prevents unnecessary stress and pressure to sign at the last minute. In California, however, you MUST have seven full days to consider the final draft of the prenup before signing. This also gives you time to consult with an attorney if you desire to do so. It’s very, very important that you and your partner don’t wait until the last minute to address your prenup (we’re looking at you, procrastinators!). You and your partner may go through several rounds of revisions to the prenup, and that takes time. While wedding planning, factor the prenup into your timeline and make sure you give yourself plenty of time to get it finalized. Don’t forget, your prenup must be signed before the wedding. So, at the VERY least, you must have a finalized draft of your agreement prepared seven days before the wedding (but we recommend getting it done way before then!).
2. Full financial disclosure
Your prenup must include a financial disclosure. This means that both you and your partner must share the good, bad, and ugly of your financial circumstances. You must attach a “financial schedule” to the prenup that lists all of your income, assets, property, and liabilities. This is a really important step (read more about financial disclosures here). If you don’t know that your soon-to-be spouse has a cool billion sitting in the bank, or a ton of debt, you won’t have all the information necessary to make the important decisions in your prenup. That is why courts pay a lot of attention to the level of disclosure provided in prenups. Lackluster financial disclosures could spell disaster for the enforcement of your prenup down the road. California does not allow you to waive the required disclosures. However, once you and your partner make full and accurate financial disclosures to each other, you can also sign a Waiver of Further Disclosures stating that you have enough information to make informed decisions in the prenup, and that you waive your right to request any additional information. If you and your partner decide to waive further disclosures from each other, you need to do so in writing (don’t worry, we provide a form!).
3. You may need an attorney
While an attorney is not generally required in order to enter into a prenup, in California, there are certain instances where they are required. Specifically, if you and your partner decide to deviate from the state law requirements for spousal support, you will each need *independent counsel*. That means that you and your spouse cannot share an attorney. If you decide to waive spousal support and don’t consult with an attorney, you are risking the enforceability of your prenup. Now, just because you need to consult an attorney on this issue, does not mean that you need to shell out thousands for an attorney to prepare your entire prenup. Instead, you simply need to take your prenup to an attorney so they can advise you on the implications of waiving your right to spousal support prior to signing the agreement, and the attorney will need to sign off on the agreement.
4. Conscionable terms
In California, and most other states, your prenup should be considered “conscionable” or the court could possibly invalidate it. For example, your prenup may be considered unconscionable if it is clear that following divorce, one of the spouses will become dependent on the state for support. In that case, the court may refuse to enforce the prenup and will allocate assets/support as it sees fit.
5. Signatures must be notarized
Finally, your signatures on your prenup MUST be notarized. Don’t forget about this seemingly minor detail! Getting your signature notarized ensures that your signature is legit and lets the court know that it was indeed you who signed the agreement. You can even get your signatures notarized from the comfort of your own home with Notarize!
Enforcement
Ok now that we’ve covered some crucial aspects of your prenup, it’s time to really hammer home their importance! Other than checking boxes, why do the above steps matter? Generally, there is no guarantee that a court will enforce your prenuptial agreement down the road. However, there are important steps that can be taken now to strengthen your prenup and increase the chances that a court will determine that your prenup is valid – like fully disclosing your finances or consulting with an attorney if you decide to waive spousal support. After going through all the trouble of creating your prenup, you certainly don’t want it getting thrown out down the road due to a preventable error. Here are a few other tidbits related to prenup validity that you should consider:
- Your prenup must be in writing
- Your agreement should be entered freely and voluntarily (that means no duress or undue influence)
- Do not include child custody or support provisions in your prenup
- Don’t include non-financial clauses such as requirements that a spouse lose weight
- No incentives to commit illegal acts
For more information, check out HelloPrenup’s California page!
Raymond Hekmat’s practice of law has been devoted exclusively to areas of California family law focusing on prenuptial agreements, divorce consulting and mediation, since earning his Juris Doctorate degree from Loyola Law School in 2009. During his tenure at Loyola, Raymond was President of the Evening Bar Association, and was awarded the Alumni Association Governors’ Alumni Award. While earning his degree, Raymond worked as a law clerk, and later an associate, for a Beverly Hills family law firm. Prior to founding HLM, Raymond’s practice involved complex family law litigation involving high-asset property division, complex custody litigation, jurisdictional issues, division of community estates and prenuptial agreements.
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