As a retired California Superior Court Judge with over 30 years of experience in Family Law, I have presided over a wide range of cases, including complex divorces, international custody disputes, and prenuptial agreements. I have drafted, reviewed, and presided over hundreds of agreements, ranging from highly contested to straightforward and enforceable. I’ve seen agreements that were written by highly respected Family Law attorneys and everything in between. But recently, a new contributor has entered the scene: Online prenuptial agreements, more specifically, HelloPrenup. So, does a HelloPrenup agreement hold up in court? Here are my thoughts.
The law on prenups in California
First, let’s talk about the requirements for a valid and enforceable prenuptial agreement (prenup) in California. Here’s what to know:
- The agreement must be in writing and signed
- Though not required, it is best if notarized to ensure authenticity
- Each party must enter the agreement voluntarily
- Both parties must provide full financial disclosure to one another
- If spousal support is involved, it is recommended each party be represented by counsel, though at a minimum, the person challenging the provision must be represented by counsel
- Both parties must follow the 7-day rule, which requires seven calendar days between the final version of the prenup and the signing
- The agreement must not be unconscionable (meaning a judge, like myself, must not find it to be egregiously one-sided)
It’s important to note that this is the law in California. The laws in other states vary slightly, so make sure to check the laws of your state and/or consult with an attorney to understand the legal requirements of your state.
Reasons why a judge would “throw out” a prenup
As a judge, several non-HelloPrenup agreements came across my desk that did not follow the rules for prenups in California. By way of illustration, here are some reasons why I did not enforce certain prenups (without specifying confidential information, of course):
Lack of financial disclosure
The prenup did not provide adequate financial disclosure to one party. An important requirement in California is that both parties must provide full financial disclosures to each other prior to signing the prenuptial agreement. Why? Because this ensures transparency and allows the parties to make informed decisions, preventing potential fraud and promoting fairness. If one spouse omits or hides financial information, that is a material piece of information that their partner is missing when they agree to the terms of the contract. So, if financial disclosures are not filled out properly, this can invalidate the prenup.
Unconscionability
There is a legal concept in California known as unconscionability. “Unconscionable” means the agreement terms are too one-sided or the circumstances surrounding the creation of the agreement are so unfair that “it shocks the conscience.” Literally, this language is often used by judges when they find that an agreement or provision is unconscionable. To be valid, prenups must not be unconscionable. I’ve seen agreements that were created under duress, making them unconscionable and, thus, not valid. Another example of unconscionability is where one party waives all of their rights to spousal support, but at the time of divorce, they find themselves without adequate financial resources while the other party has significant income and assets.
Will HelloPrenup hold up in court?
So, the question remains: Will a HelloPrenup agreement hold up in court? And the answer is yes if you follow the legal requirements in your state. Here’s the thing: just because it’s done online doesn’t make it invalid. In my opinion, this is akin to the process of obtaining an automobile insurance policy online. Perhaps even better because HelloPrenup makes an opaque process transparent; it educates the participants and requires their mutual engagement, it facilitates discussion of important topics before marriage, it streamlines compliance with the legal requirements, and it generates the prenuptial agreement, all within a short timeframe and at an affordable price!
In my experience, the validity of a prenuptial agreement, regardless of who created it, boils down to the basics: did the agreement meet the requirements for a valid prenup in CA? Was there full financial disclosure? Was it signed voluntarily? Were the terms fair? If all of the legal requirements are met, it’s enforceable. Of course, there may be situations, like someone being coerced to sign or someone hiding assets, that could make any prenup, online or not, unenforceable.
The benefits of HelloPrenup, in a judge’s opinion
From my perspective, accessibility and affordability of legal services are crucial. HelloPrenup lowers the barrier to entry for these important legal protections by offering a more affordable approach to prenups without forfeiting the quality or stinting the process.
In addition, HelloPrenup encourages a direct collaborative approach to creating a prenuptial agreement. Unlike the traditional model, where the parties take a back seat and speak through their attorneys, this collaborative approach avoids many of the pitfalls where the parties struggle to find common ground. Through its inclusive dual-party system, HelloPrenup solves this unnecessary dynamic. By allowing each partner to identify their own marital goals separately in their respective accounts and to have an open dialogue and negotiation, the parties can easily and efficiently come to joint resolutions. It also allows both parties’ voices to be heard throughout the process, and this provides strong evidence that both parties understood the agreement and were voluntary participants.
HelloPrenup also offers attorneys directly on its platform. This is exceptional for couples who seek legal counsel as an option or requirement, like a California couple choosing to waive or modify spousal support. Having the option to hire legal counsel if you have questions, need advice, or simply want more peace of mind is very convenient.
Finally, HelloPrenup provides a timely solution. The average HelloPrenup couple takes about 2 days to complete, whereas getting a prenup the traditional way with an attorney can take weeks. A quick turnaround time can be particularly beneficial for couples who opt for a prenup at the last minute.
My advice to you in your prenup journey
Here’s my advice to newly engaged couples entering into one of the biggest decisions they will ever make:
Open Communication is Key: Before saying “I do,” have candid conversations about your financial landscape—assets, debts, and everything in between—early and often. Discuss your vision for the future, including career aspirations, potential inheritances, and family planning. Don’t shy away from potentially sensitive topics like how you’d handle finances in the event of divorce or the death of a spouse. These conversations do not get easier after marriage and often are the very topics that create conflict or resentment, leading up to a potential divorce if not addressed.
Understand Your State’s Law: Familiarize yourselves with the laws on property division and spousal support in your state. For example, in California, assets and debts accumulated during the marriage are generally split 50-50, and spousal support isn’t guaranteed. If you’re comfortable with the default laws, a prenuptial agreement might not be necessary. Just make sure you understand the laws in your state and speak with an attorney if necessary.
Consider a Prenup If: Consider a prenup if you want to protect specific assets (like a family business or inheritance), protect yourself against debt, define spousal support terms different from your state’s defaults, or simply want to streamline a potential future divorce and minimize conflict. A prenup can provide clarity and peace of mind.
Seek Legal Counsel: Marriage is a big decision. You have professionals and options at your disposal. You no longer have to feel intimidated or wonder how to tackle the world of prenups. You have resources like HelloPrenup that will guide you through the prenup process and support you and your partner in hiring a California attorney at any point during your online prenup journey, allowing both of you to feel confident along the way.
My overall opinion: HelloPrenup has figured out how to offer an empowering process with enforceable language for a fraction of the cost. I encourage all couples to consider this platform when creating their prenup.
Happy planning!
Judge Patricia Garcia has over three decades of legal experience, and an expertise in complex family law matters. Fueled by personal experiences and a passion for family dynamics, Judge Garcia began with a psychology degree from UCSD, a juris doctorate from University of San Diego School of Law, and a teaching credential from San Diego State University. As a skilled family law associate and later as head of the Family Law Department at Seltzer Caplan McMahon Vitek, she earned recognition for handling intricate cases and advocating for women’s empowerment. Ascending to the San Diego Superior Court in 2000, she continued to hone her skills and expertise in family law and supervised the family divisions in the branch courts to become one of the most experienced family judges on the San Diego Superior Court, until her retirement on February 29, 2024. Judge Garcia concluded her judicial career presiding over complex family law trials, settlement conferences and international custody disputes under The Hague Convention. Judge Garcia continues to serve families by facilitating the settlement of their disputes as a private judge and mediator at Signature Resolution, and by educating the public through her work at Hello Prenup.
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