10 Thing You Need to Know About Prenup Agreements

by | Jan 30, 2018 | FAMILY LAW | 0 comments

Popularized as a source of dramatic or comedic relief on television shows and in movies, the “prenup” also known as a prenuptial or premarital agreement is created between prospective spouses who are considering getting married sometime in the near future.[1]  Premarital agreements off screen have far more serious legal repercussions that can affect the rights and legal obligations of both parties.  The parties often have this agreement drafted to protect their individual property interests in the event the marriage does not work out, following are 10 tips you need to know under the California Family Code.

1. A premarital agreement must be in writing and signed by both parties.[1]

2. The agreement becomes effective upon marriage.[2]

3. It is enforceable without consideration.[3]  Generally, all contracts in the state of California must have consideration to be valid.[4]  Consideration is a principle of contract construction that requires the parties to confer a benefit, or agree to give each other something of value, a promise to do something or not to do something, [5]

4. The parties may contract with respect to the rights and obligations of their property interests, including the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.[6] Other terms the parties may incorporate in their agreement include:

  • the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event
  • the making or a will, trust, or other arrangement to carry out the provisions of the agreement
  • the ownership rights in and disposition of the death benefit from a life insurance policy
  • and the choice of law governing the construction of the agreement.[7]

5. The parties to a premarital agreement may contract for any other matter including their personal rights and obligations as long as it is not in violation of public policy or a law imposing a criminal penalty.[8]

6. Public policy in California dictates that the parties may not include terms that would adversely affect the right of a party to receive child support.[9]

7. Terms in a premarital agreement regarding a waiver of spousal support, is not enforceable if the party against whom enforcement is sought was not represented by independent counsel or if it is found to be unconscionable.[10]

8. After the parties are married, they may amend or revoke their premarital agreement only by a written, signed agreement.[11]

9. A premarital agreement may be unenforceable by the courts if a party did not enter into the agreement voluntarily. A party might be found to not enter the agreement voluntarily if they were unable to have their own, independent attorney review the document and explain their rights and obligations, or if they did not have at least 7 calendar days to review the document and seek assistance from an independent attorney. [12]

10. A court may also refuse to enforce a premarital agreement if it is found to be unconscionable.  The agreement may be unconscionable when executed if:

  • That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
  • That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
  • That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. [13]

The law regarding premarital agreements is complex and specific legal requirements must be in place for the agreement to be found valid.  We strongly encourage anyone contemplating whether a premarital agreement is right for them and their potential spouse to seek the assistance of a Family Law attorney.

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[1] California Family Code §1610(a)

[2] California Family Code §1611

[3] California Family Code §1613

[4] California Family Code §1611

[5] California Civil Code §1550

[6] California Civil Code §1605

[7] California Family Code §1612(a)(1)(2)

[8] California Family Code §1612 (3)(4)(5)(6)

[9] California Family Code §1612(7)

[10] California Family Code §1612(7)(b)

[11] California Family Code §1612(7)(c)

[12] California Family Code §1614

[13] California Family Code §1615(a)(c)(1)(2)(3)

[14] California Family Code §1615(a)(2)(A)(B)(C)