How to Get a Prenup in California: A Step-by-Step Guide

Prenuptial agreements, or prenups, are becoming increasingly common in California. These legal contracts allow couples to define their financial rights and responsibilities before marriage.

To get a prenup in California, both parties must voluntarily agree to the terms and fully disclose their assets and debts in this legal document.

California law requires prenups to be fair, reasonable, and in line with public policy to be valid. Importantly, prenups cannot include terms about child custody or support.

It’s highly recommended that both parties hire a separate prenuptial agreements lawyer when creating their prenups. Each should have their own attorney to protect their interests and ensure the agreement is valid and enforceable.

What is a Prenuptial Agreement?

A prenuptial agreement is a written contract that outlines how assets, debts, and financial responsibilities will be handled during the marriage and in the event of a divorce or separation. While often associated with protecting wealth, prenups are beneficial for any couple seeking clarity and fairness in their financial arrangements.

In California, prenuptial agreements are governed by the Uniform Premarital Agreement Act (UPAA), which ensures that these agreements are enforceable and comply with state laws.

How to Get a Prenup in California

Decide if you need a prenup: Consider your financial situation, assets, and future plans.
Each party should hire a separate prenuptial agreement attorney licensed to practice law in California.
Fully disclose all assets, debts, and financial information.
Negotiate and discuss the terms of the agreement, including property division, spousal support, and inheritance rights.
Draft the agreement: Your attorney will create a formal document outlining the agreed-upon terms.
Review and revise the draft: both parties should carefully read the agreement and request any necessary changes.
Ensure the agreement meets California’s legal requirements:
- It must be in writing
- Both parties must sign voluntarily
- The terms must be fair and reasonable
- It must comply with California law
Sign the agreement at least 7 days after it’s presented to both parties.
Wait until the wedding. The agreement should be signed well before the marriage date to avoid claims of coercion.
Consider notarizing the agreement, although it’s not mandatory in California.
Keep copies of the signed agreement in a safe place.
Review and update the prenup as needed, especially after major life changes like having children or acquiring significant assets..

Remember that prenups in California cannot include terms about child custody or support. It’s crucial to start this process well in advance of your wedding date to avoid any potential issues with validity.

How to Disclose your Financial Information

The first step in creating a prenuptial agreement is to disclose financial information. This includes:

Listing All Assets: Both partners should list all their assets, including property, investments, and businesses.
Listing All Debts: Both partners should list all their debts, including credit card debt, student loans, and mortgages.
Providing Financial Statements: This includes bank statements, tax returns, and other relevant financial documents.
Disclosing Financial Obligations: Any financial obligations, such as alimony or child support, should be disclosed.

It is essential to be honest and thorough when disclosing financial information. Failure to disclose information can lead to the prenup being overturned in court. Full transparency helps ensure that the agreement is fair and enforceable.

How to Define Community and Separate Property

The second step in creating a prenuptial agreement is to define community and separate property. This includes:

Defining Community Property: Community property includes assets acquired during the marriage. In California, community property is typically divided equally in the event of a divorce.
Defining Separate Property: Separate property includes assets acquired before the marriage, as well as inheritances and gifts received by one spouse. Separate property is not subject to division in a divorce.
Determining Division of Community Property: The prenup should specify how community property will be divided in the event of a divorce.
Protecting Separate Property: The prenup should outline how separate property will be protected and ensure it remains with the original owner.

Understanding the difference between community and separate property is crucial in California. Properly defining these terms in a prenuptial agreement helps protect each partner’s assets and ensures a fair division of property in the event of a divorce.

Prenuptial Agreements in California: Requirements and Eligibility

A prenuptial agreement (prenup) in California is a legally binding contract that outlines how assets, debts, and other matters will be handled in the event of divorce or death. Governed by the Uniform Premarital Agreement Act (UPAA), California law sets specific criteria to ensure prenups are valid, enforceable, and fair.

Key Requirements for a Valid Prenup

To be enforceable, a California prenuptial agreement must meet the following criteria:

Written and Signed: Prenups must be in writing and signed by both parties. While electronic signatures are valid, physical signatures are often preferred to avoid disputes.
Voluntary Agreement: Both individuals must sign the prenup voluntarily, without any pressure or coercion. Any indication of duress or undue influence can invalidate the agreement.
Full Financial Disclosure: Parties must fully disclose their assets, debts, income, and liabilities, including real estate, investments, and business interests. Incomplete disclosure may render the prenup unenforceable.
Independent Legal Counsel: While not mandatory, it’s strongly recommended that each party consult their own prenup attorney to ensure fairness and understanding of their rights. If a party waives this, the waiver should be clearly documented.
Waiting Period: California requires at least seven days between presenting the final agreement and signing, allowing sufficient time for review and consideration.
Fair Terms: The prenup must not include terms that violate public policy or are illegal.

Eligibility for a Prenup

To create a valid prenup in California, both parties must meet the following eligibility criteria:

Age and Mental Capacity: Each party must be at least 18 years old and of sound mind, capable of understanding the agreement’s nature and consequences. Intoxication or cognitive impairment at the time of signing can invalidate the prenup.
Legal Residency: California law does not require either party to be a legal resident, but the agreement must comply with state law if enforced here. Immigration status does not directly affect eligibility, but international couples should consult attorneys familiar with cross-border legal considerations.

What Prenups Can Cover

California prenuptial agreements can address:

Property division
Spousal support
Inheritance rights
Business ownership and interests

While not legally required, independent prenup lawyers for both parties helps ensure the agreement’s fairness and reduces the risk of future challenges. Prenups can still be invalidated if they are deemed unfair, improperly executed, or signed under duress.

Benefits of a California Prenup

A California prenup can offer several benefits to couples, including:

Protection of Separate Assets: A prenup can help protect the separate assets of each partner, such as property, investments, and businesses. This ensures that these assets remain with their original owner in the event of a divorce.
Clarity on Financial Responsibilities: A prenup can provide clarity on financial responsibilities, including spousal support, debt division, and property division. This helps both partners understand their financial obligations.
Reduced Conflict: By clearly outlining each partner’s financial rights and responsibilities, a prenup can help reduce conflict in the event of a divorce. This can lead to a more amicable separation process.
Protection of Family Businesses: If one or both partners have family businesses, a prenup can help protect these assets and ensure they remain within the family.
Tax Benefits: A prenup can provide tax benefits, such as the ability to transfer assets without incurring gift taxes. This can be particularly beneficial for estate planning.

Who Should Consider a Prenup?

A prenup is not just for the wealthy or for couples with significant assets. Any couple who wants to protect their financial interests and ensure a smooth divorce process should consider a prenup. This includes:

Couples with Significant Assets: If either partner has substantial property, investments, or businesses, a prenup can help protect these assets.
Couples with Significant Debt: If either partner has significant debt, such as student loans or credit card debt, a prenup can help clarify responsibility for these debts.
Couples with Children from Previous Relationships: A prenup can help protect the financial interests of children from previous relationships.
Couples Entering Subsequent Marriages: Those entering into a second or third marriage may want to protect assets from previous marriages.
Couples with Income Disparities: If there is a significant difference in income or assets between partners, a prenup can help ensure fair financial arrangements.

Key Components of a California Prenup

A California prenup typically includes provisions for property division, spousal support, debt allocation, and retirement benefits. These elements form the core of most prenuptial agreements in the state.

Property Division

California law treats property acquired during marriage as community property. A prenup allows couples to designate certain assets as separate property. This can include:

Pre-marital assets
Inheritances
Gifts received by one spouse
Business interests

The agreement may specify how future earnings or property acquisitions will be classified. It can also outline procedures for managing and dividing assets in case of divorce.

Couples should provide detailed inventories of their assets and debts when crafting this section. Being thorough helps prevent future disputes and ensures the agreement’s enforceability.

Spousal Support

Prenups often address spousal support, also known as alimony. Couples can:

Waive spousal support entirely
Set a specific amount or duration for support
Establish conditions for support payments

California courts may scrutinize spousal support provisions closely. They must be fair and not leave one spouse destitute. Including the reasons for any limitations on support can help demonstrate the agreement’s fairness.

The prenup should also consider potential changes in circumstances, such as the birth of children or career changes. This foresight can prevent the agreement from becoming unconscionable over time.

Debt Allocation

A prenup can protect one spouse from the other’s debts. It may specify:

Which debts remain separate
How joint debts will be divided
Responsibility for future debts

This section should address both existing and potential future debts. It’s crucial to be specific about credit card debts, mortgages, and student loans.

The agreement can also outline procedures for handling joint accounts and credit cards. This helps prevent one spouse from accumulating debt that the other might be liable for after divorce.

Retirement Benefits

Retirement benefits often represent a significant portion of a couple’s assets. A prenup can address:

Division of retirement accounts
Treatment of pension benefits
Allocation of Social Security benefits

The agreement should specify whether retirement benefits earned during marriage will be considered separate or community property. It may also outline a formula for dividing these assets in case of divorce.

Couples should be aware that certain retirement benefits, like ERISA-governed plans, have specific legal requirements for division. The prenup should acknowledge these requirements to ensure enforceability.

Drafting the Prenuptial Agreement

Creating a prenuptial agreement requires careful consideration of financial matters, expectations, and lifestyle choices. A well-crafted prenup addresses both current and future concerns.

Disclose Financial Information

The first step in creating a prenuptial agreement is to disclose financial information. Create a comprehensive inventory of each party’s assets and liabilities. This includes:

Listing All Assets: Both partners should list all their assets, including property, investments, and businesses.
Listing All Debts: Both partners should list all their debts, including credit card debt, student loans, and mortgages.
Providing Financial Statements: This includes bank statements, tax returns, and other relevant financial documents.
Disclosing Financial Obligations: Any financial obligations, such as alimony or child support, should be disclosed.

Planning Future Finances and Property Management

Specify how joint accounts and shared expenses will be managed during the marriage. Define separate property and outline how it will remain separate.

Consider future financial scenarios, such as retirement planning and pension benefits. Address potential inheritances or gifts from family members.

Include provisions for life insurance policies and beneficiary designations. Discuss tax implications of property transfers and support payments.

Define Community and Separate Property

The second step in creating a prenuptial agreement is to define community and separate property. This includes:

Defining Community Property: Community property includes assets acquired during the marriage. In California, community property is typically divided equally in the event of a divorce.
Defining Separate Property: Separate property includes assets acquired before the marriage, as well as inheritances and gifts received by one spouse. Separate property is not subject to division in a divorce.
Determining Division of Community Property: The prenup should specify how community property will be divided in the event of a divorce.
Protecting Separate Property: The prenup should outline how separate property will be protected and ensure it remains with the original owner.

Outline Expectations and Provisions

Begin by listing the main objectives of the prenup. Identify key assets, debts, and financial responsibilities for each party. Include provisions for property division, spousal support, and inheritance rights.

Discuss how future earnings and assets will be handled. Address potential career changes, business ventures, or educational pursuits. Consider provisions for children from previous relationships.

Outline procedures for dispute resolution, such as mediation or arbitration. Include a sunset clause if desired, specifying when the agreement will expire or be reviewed.

Consider Lifestyle Clauses

Include agreements on shared responsibilities and expectations within the marriage. Address career goals, education plans, and potential relocations.

Discuss family planning decisions, including agreements on having children or adoption. Consider including provisions for pet ownership and care.

Outline expectations for religious practices or cultural traditions. Address social media usage and privacy concerns if relevant to the couple.

Include agreements on division of household duties and financial responsibilities. Consider clauses related to health and wellness, such as fitness goals or substance use.

Negotiating a Prenup

After reviewing the first draft, each person should clearly express their financial goals and concerns in order to make reasonable changes that will work for both parties. At Duncan Family Law, we encourage our clients to approach these discussions with honesty and transparency based on our extensive experience. This transparency helps create a fair agreement and reduces the risk of future legal challenges.

Key points to address in prenup negotiations include:

Division of assets and debts
Spousal support arrangements
Protection of business interests
Inheritance rights

Couples may consider mediation to facilitate productive conversations. A neutral third party can help navigate difficult topics and to create a mutual understanding.

Remember that a prenup should benefit both parties. Negotiations should aim for a balanced agreement that respects each person’s interests and protects their rights.

Seeking professional guidance is crucial during prenup negotiations. Our attorneys can provide valuable insights into California’s specific laws and help ensure the agreement is fair and enforceable. It is advisable to start discussions well before the wedding date to avoid rushed decisions or undue pressure.

Finalizing the Prenuptial Agreement

Once both parties have negotiated the terms of their prenuptial agreement, it’s time to finalize the document. Each person should review the agreement with their respective attorneys to ensure all terms are accurately represented.

California law requires a seven-day waiting period between presenting the final draft and signing. This allows time for careful consideration of the agreement’s contents.

The signing should take place in the presence of a notary public. Both parties must sign voluntarily, without coercion or duress. Each signature must be accompanied by a written statement confirming the signer has read and understands the agreement.

After signing, each party should receive a copy of the finalized prenuptial agreement. It’s advisable to store these copies in a secure location, such as a safe deposit box.

Registration of the prenuptial agreement is not required in California. However, some couples choose to file it with the county recorder’s office for added security.

A prenuptial agreement becomes effective upon marriage. If the couple decides not to marry, the agreement holds no legal weight.

Periodic review of the prenuptial agreement is recommended, especially after significant life changes. This ensures the document remains relevant and aligned with the couple’s current circumstances.

After the Prenup: Amendments and Revisions

Prenuptial agreements in California are not set in stone. Couples can modify their prenup after marriage through a process called postnuptial amendment.

To amend a prenup, both spouses must voluntarily agree to the changes. Each party should have independent legal counsel review the proposed amendments.

Revisions must be in writing and signed by both parties. The amended agreement should clearly state which sections are being modified or replaced.

Common reasons for prenup amendments include:

Changes in financial circumstances
Birth of children
Career changes
Inheritance or large gifts
Relocation to a new state

Courts scrutinize postnuptial amendments carefully to ensure no coercion or unfair advantage was present during the revision process.

Periodic reviews of prenuptial agreements are also recommended. This allows couples to address any changes in their lives or relationship that may affect the terms of their agreement.

If substantial changes are needed, some couples opt to create an entirely new postnuptial agreement. This can replace the original prenup if executed properly.

Enforcement and Challenges in Court

California courts generally enforce valid prenuptial agreements. However, certain circumstances may lead to challenges or render the agreement unenforceable.

A prenup may be deemed invalid if one party can prove they were coerced or signed under duress. Lack of full financial disclosure or inadequate time to review the agreement can also be grounds for invalidation.

Unfair or unconscionable terms at the time of signing may result in a california court striking down specific provisions or the entire agreement. Courts carefully examine whether both parties had independent legal counsel.

Challenges often arise when one spouse claims the agreement is outdated or no longer reflects their circumstances. Significant changes in financial status or family situation since signing can impact enforcement.

Courts may scrutinize prenups that attempt to limit child support or custody arrangements. These provisions are typically considered unenforceable as they involve the rights of children.

To increase the likelihood of enforcement, couples should ensure their prenup is:

Properly executed
Based on full financial disclosure
Fair and reasonable at the time of signing
Created with independent legal counsel for both parties
Regularly reviewed and updated as circumstances change

Costs of a Prenuptial Agreement in California

The cost of a prenup depends on its complexity and the assets involved:

Basic Agreements: $1,500–$3,000 for straightforward agreements with minimal assets.
Comprehensive Agreements: $5,000–$10,000+ for complex situations, such as businesses, high-value assets, or multiple properties.

While online templates can cost $50–$500, they often fail to account for California’s specific legal requirements, making professional assistance a worthwhile investment.

Checklist for a Valid Prenuptial Agreement

Both parties must enter into it voluntarily
Ensure the agreement is in writing.
Seek independent legal counsel for both parties.
The agreement must be fair and not unconscionable
Disclose all financial details.
Review the agreement thoroughly before signing.
Adhere to the 7-day rule for finalizing the document.
The prenup cannot include child custody or support provisions

Frequently Asked Questions

Prenuptial agreements in California involve specific legal requirements and considerations. These frequently asked questions address key aspects of the process, costs, and rules surrounding prenups in the state.

What is the 7-day rule for prenuptial agreements in California?

The 7-day rule in California requires that both parties have at least seven days to review and consider the prenuptial agreement before signing. This period begins when the final draft is presented to each person.

The rule aims to prevent rushed decisions and ensure both parties have ample time to understand the terms.

Are notarizations required for a prenuptial agreement to be valid in California?

Notarization is not mandatory for a prenuptial agreement to be valid in California. However, having the document notarized can provide an extra layer of authenticity and protection.

Notarization helps verify the identities of the signatories and confirms that they signed the agreement voluntarily.

What are the essential components to include in a California prenuptial agreement checklist?

A California prenuptial agreement checklist should include full financial disclosures from both parties. It should clearly outline property division in case of divorce or death.

The agreement must address spousal support arrangements and any specific terms regarding debts or assets. Including provisions for dispute resolution methods is also advisable.

What is the average cost of obtaining a prenuptial agreement in California?

The cost of a prenuptial agreement in California typically ranges from $2,000 to $6,000. Factors influencing the price include the complexity of assets and negotiations involved.

How does the 10-year rule affect prenuptial agreements in California?

The 10-year rule in California can impact the enforceability of certain provisions in prenuptial agreements, particularly those related to spousal support. After 10 years of marriage, courts may scrutinize support waivers more closely.

This rule reflects the state’s recognition of long-term marriages and the potential need for spousal support in these cases.

Is it necessary to have a lawyer when creating a prenuptial agreement in California?

While not legally required, having a lawyer is strongly recommended when creating a prenuptial agreement in California.

Each party should ideally have their own independent counsel.

Attorneys ensure the agreement meets all legal requirements and adequately protects each person’s interests.

They also help navigate complex financial issues and state-specific laws.