As you’re preparing for your big day in the ‘Sunshine State’, it may be easy to get wrapped up in the whirlwind of excitement, romance, and a fairytale ending.
However, now is the time to consider safeguarding your future and protecting your assets, even if you are in a rock-solid relationship.
What is a prenuptial agreement?
A prenuptial agreement (or prenup) is a written contract signed by a couple before marriage, to set out their financial plan for their marriage and in the event of a divorce.
Every state has its own specific set of rules, statutes and caselaw regarding prenups, so you must be careful when it comes to the dos and don’ts for a prenup in your jurisdiction.
So, here’s the rundown of a few things you need to know about negotiating a prenup in advance of your happy day.
What you need to know about getting a prenup in California
The UPAA (the Golden State’s Uniform Premarital Agreement Act) determines the constraints for prenups in California.
Couples in California can draft their own prenups, however, if not done properly then it is easy for the contract to become void or invalidated. HelloPrenup’s seamless, clear, and efficient proprietary software allow you to create a draft prenuptial agreement in California to help protect your agreement and your assets. It is important to remember that California has a set of very specific rules relating to enforceability, including the fact that an attorney is necessary if spousal support is to be waived of modified.
1. You need to be time-savvy
A prenup goes into effect once a couple marries. However, to secure a valid prenuptial agreement in California, both spouses must demonstrate that they fully understand their contract and have had adequate time to consult an attorney, including at least seven days in between the proposal of the agreement and the signing of an agreement.
Again, the couple must have had a full 7 days to review the prenuptial agreement and obtain counsel before signing it. However, the prenup will not be effective until the official date of marriage.
2. You must meet California’s full list of requirements
According to the current mandates set out by the UPAA, a prenup can be legally enforceable only if both spouses meet all the following requirements:
- They had full disclosure and full understanding of their spouse’s financial property, assets and liabilities.
- They had 7 full days to review the prenuptial agreement before signing it.
- They were represented by an independent attorney or waived their rights to legal counsel through a separate document, also known as a ‘Written Statement of Waiver’.
- If spousal support is waived or modified, the party waiving must be represented by an attorney.
These requirements, along with others, can be read on our California prenup page here, which includes links straight from the UPAA.
3. The terms of the agreement must be conscionable
In California and most states, all prenuptial agreements (and generally, all contracts) must be both conscionable.
Therefore, the contract could be ruled unenforcable by a judge if they deem that the agreement will leave one party dependent on state assistance.
In January of 2013, the California Court of Appeals ruled on the case In re Marriage of Facter, 212 Cal.App.4th 967, that the spousal support waiver that was present in the Facters’ prenuptial agreement was unenforceable because it is unconscionable. This holding set a precedent for California courts moving forward. In the Facter case, at the time the Premarital Agreement was signed, the wife was am unemployed high school graduate and single mother of two children. Meanwhile, the husband was an accomplished attorney who earned about $500,000 per year. The California court held that the waiver of spousal support was unconscionable because of the dramatic disparity in the husband and wife’s “respective incomes and assets at the time they entered into the Agreement,” and the court further reasoned that there existed “a significant inequality of bargaining power.” The court reasoned that the husband and wife’s financial situations if the contract was enforced would also make the spousal support waiver “unjust.” The court detailed their reasoning, citing that the husband had amassed approximately ten million dollars in assets and earned one million dollars per year at the time of divorce, while the wife remained unemployed and had no separate assets of her own during the marriage.
4. The agreement must be voluntary
For a prenuptial agreement to remain enforceable, the contract cannot have been signed under duress, coercion, or by a party lacking mental capacity. This is just simple contract law (and common sense!).
5. All signatures should be notarized
In California, the signatures included on the document should also be notarized. This is easy to do! Getting your agreement notarized means that the signatures are legitimate and can be used to verify who signed the document and when. Want to learn more about notarization?
6. There must be a full disclosure of assets
When entering into a marriage, honesty is always the best policy! And the same applies to drawing up your prenup contract.
Before signing the agreement, both parties are obligated to disclose their property, assets, and details of any financial liabilities. This includes real estate, debts, pensions, mortgages, and loans too. We mean everything! A prenuptial agreement can be declared unenforceable in California if one or both parties failed to make a full disclosure of finances.
Check out this video on why full disclosure of assets is essential:
7. An attorney must witness the renunciation of spousal support
If a party is waiving their right to spousal support, then they must have legal representation at the time of signing the contract for that provision to be enforceable.
What can be included in a prenup in California?
A prenuptial agreement is used to clarify how each spouse’s finances and liabilities will be managed and distributed in the event of a divorce. Want to learn more? Here are ten things you should know before signing a prenuptial agreement.
Therefore, the contract can detail provisions relating to:
- Community Property
- Separate Property
- Spousal support, also called alimony in some states
What cannot be included in a prenup in California?
Not everything can, or should be, included in a prenup, and the courts in California are very stringent about this.
Some rights cannot be determined, waived or amended through a prenuptial agreement and these include:
- Child support rights
In California, the courts have ultimate authority to make decisions for the best interests of a child impacted by divorce. Therefore, terms relating to the limitation of support cannot be contracted away.
- Child custody arrangements
Again, the courts have authority to make decisions relating to children impacted in a divorce, and terms relating to custody of a child cannot be contracted away in a prenup.
- Provisions promoting divorce
Like most states, California nurtures and encourages the sanctity of marriage. Therefore, no agreement should contain incentives, provisions, or ultimatums that would lead to divorce.
- Violations of public policy or law
A prenup should not consist of any provisions encouraging or motivating illegal acts. This means that the contract should not cite that a spouse is obliged to undertake an illegal act as part of the premarital agreement.
- Unconscionable or frivolous terms
Using a prenup for non-financial matters or for asserting trivial mandates, obligations or roles will frequently be frowned upon by the courts. Moreover, they are often not legally binding and unlikely to be upheld by a court.
Can you get a prenup after marriage in California?
A prenuptial or premarital agreement must be drawn up and signed before the wedding takes place. However, all is not lost, you could arrange a postnuptial agreement or postnup.
A postnup can provide some level of protection of assets in the event of a divorce but they are often less widely accepted and more frequently contested than a prenup. Therefore, it is always best to think ahead and secure a premarital contract.
Does a prenup expire in California?
Do prenups expire in California? Unless the contract states otherwise, there is no automatic expiration date for a prenuptial agreement, making them valid for the duration of the marriage. However, some couples choose to add a ‘sunset clause’ meaning that the prenup will expire at a certain date or wedding anniversary.
How much does it cost to get a prenup in California?
In California, the cost of your prenuptial agreement can depend on how easy or complex your situation is, how long the negotiations take and how intricate your agreement needs to be. The average attorney’s fee ranges from $2,000 to $6,000. However, a prenup with HelloPrenup costs only $599 per couple and can be completed in as little as a few hours.
If you would like to find out more about how to get a prenup with ease through HelloPrenup, then contact us at [email protected]. We would love to say hello!
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].