For many people, the idea of drawing up a prenuptial agreement (often called a premarital agreement) seems to indicate they don’t think their upcoming marriage will last. But that’s not the right way to look at it. Instead, think of a prenuptial as the same thing as taking out auto or homeowner’s insurance. You hope you never have to use it but will be glad to have it if you do. Here’s what you need to know about prenuptial agreements in California.

What Is the Uniform Premarital Agreement Act?

The Uniform Premarital Agreement Act (UPAA) went into effect in California in 1986. It decreed that a prenuptial agreement signed by a couple before the wedding goes into effect once the couple is legally married. That means that if the couple breaks up before the marriage, the prenuptial is not enforceable; it’s only valid if the couple has a marriage recognized by the state of California.

The UPAA also requires a prenuptial agreement to be a contract signed before the marriage takes place (otherwise, a document known as a postnuptial agreement can be drawn up after the wedding). It states that both prospective spouses sign it voluntarily after receiving a complete picture of each other’s assets, income, and debts. Before they can sign, there’s a one-week waiting period for each side to review with their individual attorneys.

What Can or Can’t Be Included in a Prenuptial Agreement?

As for what can be included, essentially anything that is related to the finances of each person separately and as a couple could be included. This could include any kind of asset that has monetary value, and it also includes debts being brought into the marriage.

What can’t be included:

  • Couples cannot dictate the terms of the relationship itself (for example, whom the couple will spend major holidays with or how they will treat each other).
  • Neither spouse can require the other to do anything illegal, nor can they use unfair, unjust, exploitative, or deceptive terms.
  • No non-financial terms can be used (such as one spouse requiring the other to provide dinner every night).
  • No terms involving child custody or support.
  • Alimony requirements are not allowed to be included in a prenuptial if the spouse who would receive alimony chooses not to have the agreement reviewed by an independent attorney.

Do I Need an Attorney to Draft a Prenuptial Agreement?

It’s highly recommended due to the fact that these types of legal documents have requirements that, if not fulfilled, could cause the agreement to be invalidated. Ensuring your assets are fully protected down the line makes having an experienced attorney involved in the process invaluable.

It’s essential to know that not only does a prenuptial agreement need to be legally sound before it’s signed, but it also must be formally printed out and signed, then notarized. Verbal agreements will not be recognized in court.

Can a Prenuptial Agreement Be Changed Once Signed?

Yes. It can be done before the marriage or even after the wedding. If changes need to be made after the wedding (for example, if one spouse received an unexpected inheritance they want to keep separate), they should work with attorneys to revise the agreement and follow the legal requirements.

Can a Court Ever Overrule a Prenuptial Agreement?

There are some situations in which the court could overrule part or all of a prenuptial agreement. This usually results from the court determining the terms of the agreement to be “unconscionable.” That means the judge would view carrying out the terms as being overly unfair to one spouse. For example, suppose one couple married while both were high-income earners.

After the marriage, one spouse became disabled and unable to work. The prenuptial may have specified that in the event of divorce, each would rely only on their own income, but in this case, the person with the disability may be impoverished once divorced. A judge might deem that unconscionable and order the wealthy party to support the poorer spouse financially.

Another scenario is if one spouse forces the other to sign the agreement against their will. Note that this could include cases where the prenuptial was drawn up but not signed until right before the wedding. If one spouse had hesitations but felt they had to sign because of the impending wedding, that could cause the agreement to be invalidated.

If one spouse deliberately hid assets or income in order not to have them be part of the prenuptial or community property of a marriage in California, that can lead to invalidation.

What Should I Do if I’m Interested in Drawing Up a Prenuptial Agreement?

Call us at 909-323-7962 to request an initial consultation. Drawing up a prenuptial agreement between prospective spouses can sometimes be stressful and difficult. Working with an experienced, knowledgeable family law attorney can help you understand the process and determine what you should include in such a document, even if you believe you’ll never need it. Protecting your assets can provide peace of mind when moving forward with something as important as marriage.

If you and your prospective spouse have drawn up a prenuptial, but they’re asking you not to have it reviewed by an independent lawyer, that should be a red flag. Having an attorney who didn’t work with the other person in the relationship ensures you’re treated fairly. If this happens, call us as soon as possible so we can look for problematic clauses in the prenuptial agreement before you sign it.