Experience the difference

The role of the premarital agreement in California marriages

It can be awkward and definitely not romantic to tell your prospective spouse that you want to talk about the possibility of drawing up a premarital agreement. While some view a contract between engaged people that governs ownership and disposition of money and assets in the future marriage as a negative reflection on trust or generosity, others view prenuptial agreements as realistic, pragmatic and a way to keep future drama and uncertainty to a minimum.

Why a prenup?

People usually use premarital agreements when they enter their marriages with significant wealth or the likelihood of future wealth that they want to keep from their future spouses or future spouses' families. Sometimes it can be important to keep family heirlooms in families of origin instead of passing into the families of second and subsequent spouses. A prenup can also be used to protect one spouse from liability for the debts of the other and for many other reasons.

Role of prenup

California law determines property ownership during marriage, upon divorce and upon the death of either spouse. Just as a valid will can change who inherits someone's property upon death, a valid premarital agreement may alter the property rights Californians have as spouses during marriage, upon separation or divorce, or at death. California law even says that the parties can agree to property disposition issues if "any other event" happens or does not happen.

Premarital agreements are also sometimes called prenuptial agreements or "prenups," or antenuptial agreements. California has adopted the Uniform Premarital Agreement Act, a sample set of statutes that states are encouraged to adopt as law so that when couples move from state to state, the prenuptial agreements they take with them will be easily enforceable and more familiar to the courts.

Prenup requirements

Basically, California statute says that a premarital agreement must be in writing and signed by both prospective spouses. Consideration is not necessary to make a prenup enforceable, which basically means nothing of value must be exchanged or given up for the prenup to be valid. California premarital agreements become valid at the time of marriage.

A California prenuptial agreement determines the property rights of the prospective spouses, and the law sets out extensive and detailed explanation of the various types of property and property rights that can be contractually dealt with. The focus of the California statutes governing prenups is upon property rights only and spouses may not otherwise "alter their legal relations" by contract. Provisions may not deal with criminal matters or be against public policy.

California prenuptial agreements may not negatively impact children's rights to child support. There are also specific requirements concerning spousal support (alimony); namely, that the person to provide support must have his or her own lawyer at the time of signing and that the alimony provision must not be unconscionable (shockingly unfair) when enforced.

Premarital agreements can be amended or terminated by written, signed agreement of the spouses during marriage. Prenups may be found invalid and unenforceable in certain situations. For example, a party must enter into a premarital agreement voluntarily; an agreement must not be unconscionable and assets and debts must be fully disclosed; and there must not have been duress, fraud, undue influence or incapacity.

Seek legal counsel

Any Californian contemplating a prenuptial agreement or who has been presented with one by his or her prospective spouse should seek the advice of an experienced California family law attorney.