Premarital agreements in California are governed by California Family Code sections 1600 – 1617, which are formally known as California’s Uniform Premarital Agreement Act. Premarital agreements are basically agreements made by unmarried couples that will take effect upon marriage.
A premarital agreement in California must be in writing.
Nearly any financial issue can be dealt with in a premarital agreement, however, issues relating to child support and custody and visitation cannot be included as it would violate public policy. Moreover, couples cannot enter into agreements related to marital obligations or duties, including, but not limited to, household chores, frequency of sexual relations, or penalties for adultery. Additionally, California case law holds that provisions contained in a premarital agreement cannot promote divorce.
With respect to spousal support, although parties can include provisions concerning spousal support in their premarital agreements, such provisions will not be enforced unless the person whose spousal support is limited or waived had independent counsel before entering into the agreement. Additionally, if provisions related to spousal support are unconscionable at the time of enforcement, they will not be enforced. As such, it is almost impossible to determine in advance whether a spousal support provision included in a premarital agreement will be enforceable upon divorce, as financial circumstances and the ability to support oneself may change at any time (but there are ways to draft the agreements to minimize any attacks on the provisions in the future).
The following conditions must be met in order for a premarital agreement to be enforceable: (1) there must be financial disclosure; (2) the premarital agreement must not be unconscionable; (3) there must not be any coercion; (4) the parties must understand what they are signing; (5) if a party is unrepresented by independent legal counsel, that party must be informed in writing that they have the right to seek such independent counsel; and (6) there must be at least seven days between when a party is first presented with an agreement and when the agreement is signed.
Given the many formal requirements involved in preparing and signing a premarital agreement in California, people desiring to enter into such agreements should consult with an experienced family law attorney. Our office prepares and reviews premarital as well as post-nuptial agreements.
Protect your assets, including, but not limited to:
- The Family Residence or Other Real Estate Holdings
- Retirement Plans/Benefits
- Business Interests
- Limitation on Debts
- Limitations on What Can and Cannot be Considered Community Property