A prenuptial agreement, or "prenup," is a written contract you sign before you get married. It sets rules for how property, debts and sometimes support will be handled if the marriage ends or a spouse dies. California has specific rules for prenups. Missing one can put the whole agreement at risk.
California's Uniform Premarital Agreement Act
Prenups in California are governed by the Uniform Premarital Agreement Act, found in the Family Code. Under this law, a prenup must be in writing and signed by both people. It takes effect when you marry.
A prenup can cover many topics, including:
- which property each person keeps as their own;
- how income and property gained during the marriage will be treated;
- who is responsible for which debts;
- the right to buy, sell or manage property;
- what happens to property when a spouse dies;
- spousal support, under strict limits.
A court can refuse to enforce a prenup if a person did not sign it voluntarily. A court can also refuse to enforce it if it was unconscionable (extremely unfair) when signed and the person was not given fair disclosure of the other's property and debts.
The 7-day rule
California law tries to make sure no one is rushed into signing. For a prenup to be considered signed voluntarily, there generally must be at least 7 calendar days between when a person is first given the final agreement and told to get a lawyer, and when they sign it.
This is one reason to start early. Waiting until the week of the wedding can create problems. A good rule of thumb is to begin the process months before your wedding date, so there is time to share information, negotiate and review drafts.
Independent counsel
"Independent counsel" means each person has their own lawyer. One lawyer cannot represent both of you. Having separate lawyers is one of the strongest ways to show that both people understood the agreement and signed it freely.
The law treats the issue in two ways:
- For the agreement in general, a person who does not have a lawyer must be fully informed in writing of the terms and of the rights they are giving up, in a language they understand, and must sign a written waiver of counsel.
- For spousal support terms, the rules are stricter. A provision that limits or waives spousal support may not be enforced unless the person giving up support had their own lawyer when signing. Even then, a court may refuse to enforce it if it is unconscionable when enforcement is sought.
We can represent one person in a prenup, either preparing the agreement or reviewing one prepared by the other person's lawyer.
What a prenup cannot do
Some things are off-limits, no matter what you both sign:
- Child support. A prenup cannot reduce or waive a child's right to support.
- Child custody. Custody and visitation are decided based on the child's best interest at the time, not by a prenup.
- Anything illegal. A prenup cannot require a person to break the law or violate public policy.
Terms that try to punish a spouse for ending the marriage, or that are very one-sided, may also be challenged.
How the process usually works
- Each person meets with their own lawyer to talk about goals.
- Both people gather and share information about income, property and debts.
- One lawyer prepares a draft, and the other lawyer reviews it.
- The two sides negotiate changes.
- The final agreement is presented, the 7-day period runs, and both people sign.
Already married? A postnuptial agreement follows different rules. Learn more on our marital agreements page, or visit our family law overview.
Talk with a Whittier prenup lawyer
Steven Ibarra personally handles every case and offers same-day appointments in person or by video. We are available 24/7. Call (562) 612-7806 or contact us to start your prenup with plenty of time before the wedding. Hablamos español.