If you live in California you must love sunshine, easy access to the beach, surfing, and delicious food. For all of us who do not live in California, we are jealous. Just sayin’. Now back to prenups!
Prenups in California
The Golden State’s Uniform Premarital Agreement Act (UPAA) specifies the requirements for a valid Prenuptial Agreement in California. The UPAA states that a prenup, or as it is called in California, a “premarital agreement” is a contract that prospective spouses sign before entering into a marriage. A prenup is not effective until the date of marriage, and parties to the agreement are not bound to the terms until after marriage. A Cali prenup must be in writing (saying “Let’s agree to this prenup verbally!” does not count), the agreement must be signed by both parties without duress or coercion, those signatures must be notarized, the agreement cannot contain any illegal provisions and must include full financial disclosure.
Your Premarital Agreement can also contract the rights of spousal support, but cannot contract to child support.
What can you include in a Cali Prenup?
A prenup in California must comport with specific state requirements that include:
- The prenup must be a written contract – no verbal prenups are allowed
- The terms of the agreement must be lawful- ie, you cannot add in provisions regarding anything illegal
- The agreement must be signed by both parties and notarized.
- Signatures must be voluntary
- Signatures should be notarized (*see below)
- Parties must have the opportunity to seek representation from an attorney at least seven days prior to execution of the agreement
- Full disclosure of all finances- assets and debt!
- Spousal support – If your agreement is modifying or waiving spousal support, then that party must have had attorney representation at the time that agreement was signed in order for that waiver to be enforceable
Your Premarital Agreement cannot contract to child support.
What on earth is a notary and where can you find one?
What is a notary and where do you find one?
A Notary Public aka a Notary, is a person appointed by a state government to verify the identity of signers to a document and witness the signing of those documents.
A Notary’s duty is to screen the signers of important documents for their true identity, their willingness to sign the agreement without coercion, duress or intimidation, and their awareness of the contents of the document. Not all states require the signatures on your Prenuptial Agreement to be notarized- but, you should have your signatures notarized anyway. Why? Because it is best practice to do so, and frankly you have made it this far, don’t let something important like this slip!
Notaries are easier to find than you may imagine. You can find a notary at one of the following locations: AAA, a bank, law firm, real estate office, accountant, UPS store, library, among others. If you’re looking for a notary online, because ya know, that is the world we live in these days, you can try a site like Notarize.com that makes the process of getting your prenup notarized quick and easy.
What you cannot include in your California prenup
To make sure that your prenup comports with California law, make sure not to include…
- Anything related to child custody or child support – you cannot contract away the rights of your children via a prenup
- You cannot forbid parties to the prenup from obtaining legal representation if they choose
- You cannot incentivize or require illegal acts
- Don’t include anything that is an incentive to divorce. Like, “I’ll give you $1,000,000 if you divorce me in 5 years”
- No unfair or deceptive terms allowed
- Spousal support cannot be waived or modified from what California law would provide for UNLESS the party waiving these rights is represented by an attorney at the time the Prenuptial Agreement is signed.
- You cannot include clauses that are not financial in nature, like demanding that one spouse loses weight or gains weight or sleeps with you 3x a day. Just don’t go there.
- No verbal prenups allowed. That’s right, if you come to an agreement on terms, they must be in writing. Write it, sign it, notarize it.
Know the lingo, dude.
Before diving into the deep end, let’s go through some terminology and phrases that will be used in your prenup – that way you don’t go cross-eyed trying to decipher the legal jargon and miss something. Check out our Prenup Encyclopedia here.
More California Prenup and Divorce Lingo you should know
Term used for Divorce: “Dissolution of marriage”
A dissolution of marriage is the term used in CA to refer to a divorce. In most states, a dissolution of marriage encompasses the entire process of getting divorced, as the union is being dissolved in the eyes of the law. In other states, “dissolution” refers to a no-fault divorce, and “divorce” refers to a divorce filed under fault grounds. We know, the fact that every state uses these terms differently can make things a little confusing. In California, the term “dissolution of marriage” is often used in place of the term “divorce.” A dissolution of marriage occurs when a legally married couple, begin the process to have the marriage ended.
Let’s chat a little bit about divorce in California, just so you have some background info. You may not think you need to know anything about divorce when you are getting married, but we think if you are entering into a prenup, you should understand how a divorce in your state would operate. The more you know…
Before filing for a divorce in California, you and your spouse need to verify that you are eligible to divorce here. Here are the requirements:
- Six months: You / your spouse must have been a CA resident for at least six months (prior to filing the divorce)
- Three months: You / your spouse must have lived in the county where you plan to file your divorce for at least three months (prior to filing the divorce)
Some states require couples to satisfy certain requirements before getting divorced, like a mandatory waiting period consisting of time living apart, a legal separation first, among others. Some states even require a valid reason as to why you are divorcing, called “fault” grounds. Although, this is less common these days, and most states are “no fault” divorce states. California does not have any of these prerequisites, and a couple can file a no-fault divorce without any waiting period.
From start to finish, the process to divorce in California can take six months at a minimum, even if both spouses agree to all of the terms of the divorce. Why? California requires a mandatory six-month waiting period before a divorce will be considered final.
What issues can the court preside over once your divorce is filed? The following excerpt is taken from the CA Family Code, s.2010, but edited slightly for brevity:
In a proceeding for dissolution of marriage…or for legal separation of the parties, the court has jurisdiction to inquire into and render any judgment … concerning the following:
(a) The status of the marriage…
(b) The custody of minor children of the marriage.
(c) The support of children for whom support may be ordered, including children born after the filing of the initial petition or the final decree of dissolution.
(d) The support of either party.
(e) The settlement of the property rights of the parties.
(f) The award of attorney’s fees and costs.
Note: it does not matter which party filed for a dissolution of marriage “first.” Courts don’t favor the petitioner or bring a disadvantage to a nonparticipating party.
Community Property: Term used for property of the marriage
In some states, property of the marriage is called “Marital Property,” or “Joint Property.” In California, the term Community Property is used to refer to property that is the property of both spouses. Unlike marital property, the term often used in equitable division states, Community Property generally encompasses all property acquired during the marriage, with few exceptions.
Here is the text directly from the statute:
Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
What exactly counts as “property,” you ask? Property can include anything that has value, including bank accounts, investments like stocks and bonds, retirement accounts, income, a business, life insurance, cash, cars, real estate and collectible items, among others. Community Property can encompass everything the couple acquired during the marriage, including separate assets if they have since been commingled. Just a few of the reasons we think you should consider a prenup.
Separate Property: Term used for property that is not joint
Separate Property by definition is property that belongs to just one party to the marriage. In California, Separate Property is any property one spouse owned before getting married, and can also include gifts or inheritances that were given to one spouse or partner during the marriage. This one is a little murky though, because the risk of commingling is high, and doing so could turn that property into community property in the eyes of the court. A Prenuptial Agreement can allow you to contract around state law and decide for yourselves what should be considered separate or community property.
Spousal Support is the term used for what is often known of as “Alimony”
California offers different types of Spousal Support, that can apply to different situations including: temporary and permanent support, among others. Due to requirements under the California UPAA (CA Prenuptial Agreement statute), if you or your future spouse are modifying or waiving rights to spousal support in CA, or agreeing to terms relating to Spousal Support that differ from California law, it is imperative that party be represented by a lawyer at the time the agreement is signed. If that party is not represented by a lawyer, the agreement is at risk and the Spousal Support waiver will not be enforced. In most states, there is a higher likelihood that the waiver will not be enforced. However, unlike many other states, California’s UPAA spells out the fact that a waiver of spousal support requires separate legal representation for enforcement. Ok, so now how can you use HelloPrenup to create your prenup?! Many engaged and in love California couples choose to use our platform to discuss and draft their prenuptial agreement, and then choose to seek legal counsel prior to execution. Read the California Family Code § 1612(c) linked below for the full text.
See subsection (c) of the California Family Code relating to this provision:
“(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.”
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].