Creating a Valid Prenup in California

A prenuptial agreement is a legal contract that can help a couple organize their finances and plan ahead for any eventuality before they get married. Regardless of your financial standing, having a prenup could benefit you financially and give you greater peace of mind about the future. It provides an opportunity to organize your assets and debts as a couple in the event that your marriage should ever end in divorce. Ensuring that your prenup is valid in California could be critical to your future financial well-being.

Obey California’s Uniform Premarital Agreement Act 

A prenuptial agreement is a legally binding document. It must be properly drafted and correctly executed to hold up in court. If you and your spouse end up getting divorced, the last thing you want is to discover that your prenuptial agreement is legally invalid because of a mistake you made when creating it. To make the legal system more efficient, California passed the Uniform Premarital Agreement Act with clear and specific rules that must be followed to create a valid prenup. They are as follows:

  • The contract must be in writing.
  • The contract must fully disclose the assets and debts of each party.
  • Both spouses must sign the document in front of a notary.
  • The signatures must be given voluntarily, with no material misrepresentations, deceit, fraud or coercion involved.
  • There must be no unlawful or unjust terms in the prenup.
  • The signing spouse must be given at least seven days to seek independent legal counsel before signing the document.

Your prenup must meet all of the state’s requirements to be legally sound. A prenuptial agreement will not become effective until you and your spouse get married. If you are already married and wish to protect yourself from the possibility of a divorce, consider creating a postnuptial agreement instead. This is a similar contract, except it goes into effect when you and your spouse sign the document rather than get married.

Fulfill the Legal Requirements

In addition to being drafted and signed correctly, a prenup must contain only lawful and appropriate terms. If there is even one unenforceable term, it can invalidate the entire prenuptial agreement. Most prenuptial agreements focus on the financial aspects of a divorce, such as property or asset division, debt division, spousal support (alimony), and inheritances to any heirs. Do not risk losing the protection of your prenup with a term that is not allowed, such as: 

  • Requiring a wife to produce male heirs.
  • Demanding that a spouse loses weight.
  • Requiring a spouse to have a specific hair color or physical appearance.
  • Any terms about child custody or child support.
  • Unfair or excessive spousal maintenance requirements.
  • Requiring involvement or compliance with illegal activities.
  • Exploitive or deceptive terms. 
  • Terms that promote divorce.
  • Terms that go against public policy.

Your prenup should only include provisions that are lawful and reasonable. As a general rule, a prenup should not contain personal rules or requests. It should be professional, unbiased and focus mainly on the financial side of a potential divorce case. If the courts find that any of the terms of your prenup are illegal or unreasonably unfair to one spouse, the document can be voided.

Hire an Attorney for Professional Legal Services 

Before you sign a prenup, bring it to a prenuptial and postnuptial agreements attorney in San Diego for a review. A lawyer can ensure that your document is fair and legally valid. A lawyer can also draft the prenup for you so that you have no doubts about its validity and ability to stand up in court. 

If you already have a prenup and are already married, it is possible to change the terms of your agreement after your wedding. An attorney can help you with this task, as well. Paying an attorney to help you with a prenup may seem counterintuitive, but legal assistance could save you a considerable amount of time now and money in the future.