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A California prenuptial agreement is a written contract that two people sign before they marry to set the rules for their property and spousal support if the marriage ends through separation, divorce, or death. It cannot limit a child's right to support.[1]
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State family law sets the requirements for prenuptial agreements in Sections 1610 to 1617. Those sections cover how the contract must be signed, what it may include, when it takes effect at marriage, and the grounds a court can use to refuse enforcement.
A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration, so neither spouse has to give money or property in exchange for the other's signature.[3] The law does not require a notary or witnesses.
These rules control when prenups start and how they can change:
Couples who did not sign before marriage can sign a postnuptial agreement instead.
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Prenups can cover property rights, debts, business interests, estate planning, life insurance, and any other matter, including personal rights and obligations, that does not violate public policy or a statute imposing a criminal penalty. Cal. Fam. Code § 1612 lets the spouses address these subjects, including the property of either spouse whenever and wherever acquired or located:[1]
Under Cal. Fam. Code § 1612, a premarital agreement cannot adversely affect a child's right to support.[1]
Prenuptial agreements can include spousal support terms, including a full waiver of support. A spousal support provision is not enforceable if the spouse it is used against had no independent counsel when the prenup was signed. It is also unenforceable if the provision is unconscionable at the time of enforcement.[1]
California is a community property state. Without a prenup, assets and debts acquired during the marriage are generally subject to equal division at divorce. Prenuptial agreements let spouses decide in advance which property stays separate and which becomes community property, including a business started during the marriage.[1] If a marriage does end, our California online divorce service can help you prepare the divorce papers.
The process for making a prenup has five steps: financial disclosure, drafting the terms, a decision on legal counsel, time to review the final version, and signatures from both parties. Not every skipped step is a ground to challenge the prenup: under Cal. Fam. Code § 1615, a spouse can challenge it for involuntary signing, or because it was unconscionable when signed and all of the disclosure conditions listed below applied.[7]
Under Cal. Fam. Code § 1615, a prenup is not enforceable if the spouse challenging it proves one of two grounds. Section 1615 names them: the spouse did not sign voluntarily, or the prenup was unconscionable when signed and the disclosure conditions listed below all applied before signing.[7]
A family court can invalidate a prenup on these grounds:[7]
An issue of unconscionability is decided by the court as a matter of law.[7]
A void marriage changes the result. If the marriage is declared void, the prenup is enforceable only to the extent necessary to avoid an inequitable result.[8]
The 7-day rule requires at least seven calendar days between the time a party is first presented with the final version of a prenup and the time that party signs it. The rule applies to prenuptial agreements signed on or after January 1, 2020, whether or not they have an attorney.[7]
For an agreement executed on or after January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and the time the agreement was signed, regardless of whether the party is represented by legal counsel.
If the rule is not met, a court treats the signing as involuntary, and an involuntary contract is not enforceable.[7]
Yes, with one limit on spousal support. Under Cal. Fam. Code § 1612, a spousal support term, including a waiver of support, is not enforceable against a spouse who was not represented by independent counsel when the agreement was signed, so a prenup written without lawyers cannot settle spousal support. A spouse who signs without a lawyer must waive legal counsel in a separate writing and be fully informed of the rights being given up.[7]
For a spouse who signs without legal counsel, a court deems the contract involuntary unless it finds in writing or on the record that the spouse:[7]
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Unless noted otherwise, the sections below are from the California Family Code, published by the California Legislative Information.
