How to Get a Prenup in California
Congratulations on your upcoming wedding and also on considering whether a prenuptial agreement is right for you. As with all matters regarding divorce, the cards are stacked against you when it comes to getting a prenup that will hold up in court. It is very common for the spouse who feels entitled to more assets and financial support that he or in most cases she agreed to before the marriage. Therefore it is absolutely CRITICAL that you not only get a prenuptial agreement, but follow very specific steps and rules to create it so that it is more likely to hold up in court if your future ex-wife decides to challenge it. Just the legal fees from a challenge, even if your ex-spouse doesn’t win, can be $50,000 or more and will tie up your energy in a legal matter when you should be moving on with your life.
A prenuptial agreement (also called a premarital agreement or prenup) is a legal contract two parties sign before they enter into the institution of marriage. The contract describes what will happen with the couple’s assets and debts should the marriage end in divorce and you can reach an agreement on how spousal support will be handled. The other big benefit is that it helps you and you future spouse to have an in-depth discussion about money, spending and your respective careers. Are you going to have a traditional marriage where one spouse earns and the other manages the household? That decision comes with major financial implications if the marriage doesn’t survive. If you have a traditional marriage and stay married for more than two years, the higher earner could be obligated to support the other party FOREVER. Seems like that is something you should think about and discuss BEFORE you get married.
To have a valid prenup in California, a couple must draw up the contract per very specific laws and regulations.
California's Premarital Agreement Law
California’s Uniform Premarital Agreement Act (UPAA) outlines the rules and requirements for prenuptial agreements. The definition of a premarital agreement according to the law is a contract that two prospective spouses enter into before marriage that is not effective until marriage. Properties involved in a prenup can include real estate, financial interests, income, earnings, debts, and other present or future assets. The UPAA imposes certain requirements for a couple to create a valid prenup.
Here are five of the requirements. They seem simple, but are complicated to execute correctly and it is easy to miss a step. Hence, it is critical that both you and your future spouse have separate attorneys who guide you through the process, and that both have the goal of creating a VALID prenup and not insert language on purpose to help one party invalidate it if they choose to.
- A written contract in lawful terms within the prenup
- Signatures from both parties
- Signed voluntarily (without coercion, intimidation, deceit or duress)
- A signature from a notary
- At least seven days to seek independent legal counsel before signing
And here is the big loophole. Your spouse MUST have independent legal counsel if you are including anything about SPOUSAL support. Which is the BIGGEST life-destroying issue you will face if you get a divorce.
What a Prenup Can Include
- According to the UPAA, a prenuptial contract may address many different rights and matters regarding marital property. These matters include:
- The rights to buy, sell or otherwise use a piece of property
- The division of property upon divorce or death
- The making of a will or trust
- Ownership rights to death benefits from life insurance policies and which laws will govern the creation of the prenup
The courts will not enforce illegal terms in a prenuptial agreement.
The Prenuptial Agreement Can Not Include
- Anything regarding child custody or child support
- Spousal maintenance requirements, if the signing spouse opted not to receive independent legal counsel before signing!!!!!
- Any requirements for one spouse to commit illegal acts
- Unfair, unjust, exploitative or deceptive terms
- Non-financial requirements, such as demanding a spouse to lose weight
- Terms regarding the relationship
- The courts also will not enforce verbal prenuptial agreements
- If someone wishes to enforce the terms of a prenup in California in court, he or she must have a written, signed and notarized legal document
- One spouse cannot promote divorce, enforce unfair rules, or make relationship-related requirements
- Fail to disclose all assets and debts if he or she wishes to have a valid premarital agreement in California
What Could Invalidate a Prenup?
Failing to fulfill any of California’s prenuptial agreement requirements could result in a prenup that the courts will not enforce. Examples include:
- Having a verbal contract
- Forcing one spouse to sign involuntarily
- Skipping legal requirements and
- Including “unfair terms” in the agreement. (This could be whatever the judge thinks is “unfair” with no objective justification so be very careful and get a qualified prenup expert to help you.)
It is also important to note that the courts will not enforce a prenup until and unless the couple marries. The terms of the prenup will not go into effect until the couple finalizes the marriage.
It is possible to change the terms of a premarital agreement after the wedding. Both spouses must agree to the changes and comply with the steps taken to modify the original draft. Negotiating new arrangements should be done with each party having independent counsel to make sure that they are legally valid. If you are already married and worried what will happen if one of you files for divorce, a postnuptial agreement is a great option. You should follow the exact same steps as if you were getting a prenup and get a qualified attorney to help you. The money you spend on the attorneys is a FRACTION of what you will spend on a contested divorce.
Congratulation on your upcoming wedding! Now contact two qualified attorneys today and DON’T become a statistic!!!