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How to Write Up a Prenuptial Agreement in California

Writer's picture: Linda VargaLinda Varga

How to Write Up a Prenuptial Agreement in California

A prenuptial agreement, also known as a prenup, is a legal document that couples can use to protect their individual assets and clarify financial responsibilities before marriage. In California, prenuptial agreements are governed by the California Family Code and must meet strict legal requirements to be considered valid and enforceable. Whether you’re looking to draft a prenup to protect your separate property, address spousal support, or safeguard your business interests, it’s essential to follow California law closely.


In this guide, we’ll walk you through how to write a prenuptial agreement in California, the key legal requirements, and why it’s important to ensure your prenup is drafted properly to avoid challenges in California Probate Court or family court.


What Is a Prenuptial Agreement?


A prenuptial agreement is a legal contract entered into by two people before they get married. It outlines each person’s rights and obligations regarding property, debts, income, and financial matters during the marriage and in the event of divorce or death.


In California, a prenuptial agreement can address:

  • Property rights and division

  • Spousal support (alimony)

  • Management of finances during the marriage

  • Inheritance rights

  • Debt obligations


Prenups are particularly useful for individuals who:

  • Own businesses

  • Have children from a previous marriage

  • Expect to receive a large inheritance

  • Want to protect separate property


Step 1: Understand California Prenuptial Agreement Laws


In California, prenuptial agreements are governed by the Uniform Premarital Agreement Act (UPAA). The law sets out specific requirements for a prenup to be valid and enforceable.


Key Legal Requirements for a Valid Prenup in California


To ensure your prenuptial agreement is legally enforceable, you must meet the following requirements:


Requirement

Explanation

Voluntary Agreement

Both parties must sign the prenup voluntarily, without coercion or pressure.

Full Disclosure

Both parties must fully disclose their assets, debts, and income before signing the agreement.

Independent Legal Counsel

Each party must have independent legal representation unless they waive this right in writing.

Fair and Reasonable Terms

The agreement must be fair and reasonable at the time of execution.

Signed in Writing

The agreement must be in writing and signed by both parties.

Seven-Day Waiting Period

California law requires a seven-day waiting period between when the final agreement is presented and when it is signed.

If any of these requirements are not met, the court may deem the prenuptial agreement unenforceable.


Step 2: Discuss Financial Disclosure with Your Partner


A crucial step in writing a prenuptial agreement in California is full financial disclosure. Both parties must provide complete and accurate information about their:


  • Assets (real estate, bank accounts, investments)

  • Debts (credit cards, loans, mortgages)

  • Income (salaries, bonuses, investments)

  • Future inheritances or business interests


Failing to disclose financial information can invalidate the prenup.


Step 3: Decide What to Include in the Prenuptial Agreement


When drafting a prenuptial agreement in California, you’ll need to determine what provisions to include. Here are some common topics covered in California prenups:


1. Property Division


Define what assets will remain separate property and what will be considered community property under California law. For example, you can specify that a house you own before marriage will remain your separate property.


2. Spousal Support (Alimony)


You can include provisions about spousal support in the event of divorce. However, California courts will closely scrutinize these provisions to ensure they are fair and reasonable. Courts are less likely to enforce waivers of spousal support if they are deemed unconscionable at the time of divorce.


3. Debt Allocation


Clarify how debts incurred before and during the marriage will be handled. For example, you can specify that one spouse will be responsible for paying off a student loan.


4. Inheritance and Estate Planning


You can protect inheritance rights for children from a previous marriage or outline how inheritances and gifts will be treated during the marriage.


Step 4: Draft the Prenuptial Agreement


Once you’ve discussed the terms with your partner and gathered all necessary financial information, you can start drafting the prenuptial agreement.


Here’s a sample outline of a California prenuptial agreement:


Sample Prenuptial Agreement Outline


  1. Introduction

    Names of both parties

    Date of the agreement

    Purpose of the agreement

  2. Definitions

    Define key terms such as separate property, community property, and spousal support

  3. Disclosure of Assets and Debts

    A detailed list of each party’s assets, debts, and income

  4. Property Division

    Outline how property will be divided in the event of divorce or death

  5. Spousal Support

    Include provisions regarding spousal support

  6. Debt Allocation

    Clarify responsibility for debts incurred before and during the marriage

  7. Inheritance and Estate Planning

    Specify how inheritances will be handled

  8. Miscellaneous Provisions

    Governing law (California law applies)

    Amendment clause (how changes can be made to the agreement)

  9. Signatures

    Signatures of both parties

    Date of signing


Step 5: Ensure Independent Legal Counsel


California law requires both parties to have independent legal counsel when signing a prenuptial agreement. If either party waives this right, it must be done in writing.


Each party should consult with separate attorneys to review the agreement and ensure their interests are protected. Having independent legal counsel reduces the risk of the agreement being challenged in court.


Step 6: Comply with the Seven-Day Waiting Period


In California, there must be a seven-day waiting period between when the final draft of the prenuptial agreement is presented and when it is signed. This waiting period ensures that both parties have had sufficient time to review the terms of the agreement.


Step 7: Sign the Prenuptial Agreement


Both parties must sign the prenuptial agreement voluntarily and without coercion. It is highly recommended to have the agreement notarized to provide additional proof that the document was signed willingly.


Step 8: Store the Prenuptial Agreement Safely


Once the prenup is signed and notarized, make sure to store it in a safe place. Both parties should keep a copy of the agreement, and it can also be filed with your estate planning attorney for safekeeping.


Common Mistakes to Avoid When Writing a Prenup

  • Failing to disclose assets and debts

  • Rushing to sign the agreement without proper legal review

  • Including unfair or unconscionable terms

  • Failing to comply with California’s legal requirements


Conclusion: Should You Use a Lawyer to Write a Prenuptial Agreement?


While it’s possible to write a prenuptial agreement without a lawyer, it is strongly recommended to work with an experienced California family law attorney. A lawyer can help ensure that the agreement:


• Meets all legal requirements

• Is fair and reasonable

• Will be upheld in court if challenged


If you’re looking to protect your assets and clarify financial responsibilities before marriage, contact our experienced California family law attorneys today to help you draft a legally enforceable prenuptial agreement that meets your needs.


Contact the top-rated California trust and probate attorneys Moravec, Varga & Mooney today to schedule a telephonic consultation. Have questions, call (626) 460-1763 or email LV@MoravecsLaw.com.


Southern California Probate Lawyer Serving all counties in California, including Los Angeles, Riverside, San Bernardino, Sacramento, Santa Cruz & Beyond.

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