Like any other contract, prenuptial agreements have legal requirements. For example, contracts typically need to be signed by both parties to be valid and enforceable. A contract that both parties don’t sign is just a piece of paper. Prenups are unique in that the parties to the contract are emotionally tied up (i.e., future spouses) instead of, say, business partners. Thus, prenups have their own set of requirements (that vary from state to state) and are sometimes different from regular contract requirements. For example, the 7-day rule. Regular contracts typically do not require the 7-day rule in California, but prenups do. Keep reading to learn all about the different prenup requirements and a deep dive into the seven-day rule.
What is a prenup?
First things first, what is a prenup? A prenup is a contract between two soon-to-be spouses that covers financial and some non-financial topics in the event the marriage comes to an end. Generally, a prenup may include property division, spousal support, debt allocation, obligations during the marriage, pet ownership, and more. A prenup can override the state’s default divorce law to allow the contracting spouses to determine their own outcomes in the event of a divorce.
Prenups are not only an excellent way to protect yourself and your partner financially, but they are also a communication tool. The prenup-making process forces couples to discuss topics that may be considered taboo or difficult to approach, such as death, divorce, and money. After you get a prenup, you will have an in-depth understanding of one another’s financial and life goals and expectations of each other.
Prenup requirements in California
In order to create a valid agreement in California, you must follow certain state requirements as mandated by state law. If you do not include all of the necessary requirements, you could be looking at an invalid contract that may not be enforced by a court. If that happens and you get a divorce, you will be subject to the default divorce laws of California, which you might not like. (Remember, a prenup overrides the default divorce laws of your state).
Here are the requirements necessary for a valid prenup in California:
- The prenup must be in writing.
- The prenup must be signed by both parties (HelloPrenup recommends initialing each page!).
- Don’t forget notarization! You must notarize those signatures on the contract.
- Your prenup must include full financial disclosure of each party’s finances. And, no, there’s no skimping on this and leaving out that one credit card or bank account.
- Lawyers are not necessarily required. However, if you and/or your future spouse do not want a lawyer, you must sign off on a written waiver.
- One exception to this rule: lawyers are required if you alter spousal support in your prenup. In other words, if you touch spousal support, you need a lawyer. No lawyer = no valid contract.
- The terms of the prenup must be lawful. That means no illegal terms!
- The terms of the prenup must NOT be unconscionable. This can be tricky to explain in just one sentence, but in a word, unconscionable means egregiously unfair.
- The prenup must be executed voluntarily (that is, not under some type of unlawful force such as duress, coercion, undue influence, fraud, etc.).
- Seven-day rule: there must be seven days between being presented with the FINAL agreement and when you and your partner sign it (we’ll go into detail on this in the next section).
A deep dive into the “7-day rule”
Section 1615 (c)(2)(B) of the California Family Code mandates that prenups executed after January 1, 2020, have at least seven calendar days between the time that party was first presented with the prenup in its final form and the time that the prenup is signed. This is a requirement whether or not the parties are represented by attorneys. In other words, if your agreement is absolutely final on March 1st, then you should wait until March 9th to sign. The 7-day rule gives both parties time to consider the terms thoroughly and obtain legal counsel if they see fit.
What does this mean for you? It means you should give yourself plenty of time (we recommend at least three to six months before the wedding) to start the prenup process. If you run out of time and do not have enough days left before the wedding to follow the seven-day rule, then you will not have a valid prenup.
What if you’re less than seven days out from your wedding, and you want to get a prenup?
Unfortunately, you would no longer be able to get a prenup at this time in California. That’s because of the 7-day rule requirement, and without it, you will not have a valid prenup.
If this is you, then you have two options:
- You can postpone the wedding and get the prenup done with all of the necessary California requirements, like the seven day rule; or
- You can possibly look into getting a postnuptial agreement (a.k.a. postnup). This is similar to a prenup but is done after the wedding.
Again, it is highly recommended that you begin the prenup-making process three to six months before the wedding day to avoid this type of pitfall. Prenups can take some time due to ongoing discussions, negotiations, and legal questions you may have. Don’t wait and miss your chance!
The Bottom Line
If you want a valid prenup in California, you must follow the 7-day rule. No if’s, and’s, or but’s about it. As the name suggests, the 7-day rule requires a full seven calendar days between the time the final prenup is presented to the other party and the time the parties sign the agreement.
HelloPrenup can help you create a California prenup with all of the necessary requirements in tow, including the 7-day rule. With HelloPrenup, you can have a legally sound prenup in a matter of an hour and a half and just $599 per couple.
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.