Providing Divorce Mediation Services Throughout California
Providing Divorce Mediation Services Throughout California
Dina Haddad and her team provide expert mediation services for Californians. If you want help related to any family law issue, call us or book a consult.
A prenup in California is defined under the California Family Code as an agreement between prospective spouses which determines property rights and financial arrangements.
A valid prenup must be in writing and signed by both parties. Most pre-nups include terms such as asset division when divorcing, debt allocation, and spousal support provisions with full disclosure of each party’s finances.
The 7-day rule for California prenups requires at least seven days from the final version being presented to having it signed, pursuant to California Family Code Section 1615. This reduces claims of coercion or pressure on either party.
After marriage, the document becomes effective; therefore, it can govern matters such as property purchased during marriage and financial outcomes if one of the spouses dies.
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Prenup Pros
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Divorce Decree
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Asset & Premarital Wealth Protection
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Are costly to create if done through a lawyer.
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Reducing divorce conflict and cost
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The discussion feels tough and unromantic.
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Protecting children from prior marriage.
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Becoming outdated for longer marriages.
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Bringing certainty and predictability to the marriage.
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Hard to change without mutual agreement.
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Prenups become valid on the date of marriage according to Cal Fam §1613; however, a court will void a prenup (Cal Fam §1615) based on a lack of disclosure of assets ” and/or adherence to “procedural due process.” Learn more about how to check if a prenup was filed in California.
Also, an enforceable prenup must be written, and executed by both parties. Each party must have entered into the agreement voluntarily, and without being subject to duress, coercion, or undue pressure. In addition, each party has a duty of fair and full disclosure, which includes disclosing all their assets, debts, etc. prior to executing this document.
Finally, there is a 7 day rule (California), which states that a prenup cannot be executed unless there has been at least seven days from the final draft being presented to when it is signed. Therefore, if either one of these provisions are not met, the courts will declare the prenup null & void and therefore non-enforceable.
Related: Prenups vs Postnups in California?
In theory, you can create your own prenup in California, however, as stated in the California Family Code, it will be scrutinized very closely by the court. This is why mediation may help you draft your prenup agreement. It is still highly recommended that each party has their own attorney to ensure compliance with both disclosure and voluntariness standards.
Using a mediator to assist with creating the prenuptial provides a more collaborative and cooperative process that more closely aligns with a couple getting married. The prenuptial is far less adversarial when mediating.
While a tool such as ChatGPT may be able to provide you with a template for the agreement, this tool will not provide you with legal advice. As such, there is a high risk that these agreements will not meet California’s standards and therefore could be considered unenforceable.
Timing is everything when drafting a prenuptial agreement (prenup) in California as the courts will determine if both parties entered into the agreement willingly and without coercion. For example, the closer you are to signing the contract, the higher the likelihood of being charged with duress by one party.
The interest in prenups has increased nationwide; however, according to reports, Generation Z is far more receptive to prenups than previous generations. Generation Z considers prenups a means of establishing clarity around their finances, rather than using it for planning a future divorce.
A prenup applies especially to:
Drafting a prenup ahead of time provides ample opportunity for full disclosure and legal evaluation. What about drafting a prenup after marriage? In this case, it won’t be called a prenup anymore, but a postnuptial agreement.
Here are a few reasons why a couple may consider a premarital agreement or prenup:
Insurance against a nasty or costly divorce: Premarital agreements are like automobile or disability insurance. You pray you never need it, but rest assured you have it in case the worse does happen.
Prior divorce: For those who have already divorced, they may want to avoid the potential of another divorce resulting in a loss of financial assets, read more here.
Define financial relationship: This may feel so unromantic and so unlikely for many lovebirds, but premarital agreements require a couple to do some important thinking in advance of financial marriage woes. For some, having this financial structure, this might put them at ease. And can be an opportunity for the couple to identify their financial expectations and even their roles in marriage.
Blended family: If an individual has children from a prior marriage, he or she may want to take extra measures to protect his or her estate for their children.
Retirement age: If a couple is older, and closer to retirement, they may want to make sure their nest egg is protected, especially from the possibility of a protracted and costly divorce.
Waiver of spousal support/alimony: You can also waive spousal support in a premarital agreement. California is a no-fault state. Think about the difficulty when one spouse has had an affair, resulting in the divorce, but that spouse is still entitled to receive spousal support from the spouse on whom she or he cheated.
Timing for prenups can impact their validity. Prenups cannot be executed after the wedding date and both parties need to have a complete understanding of each other’s financial situation.
Starting early reduces legal risk and ensures the agreement meets California requirements.
In California, without a prenuptial agreement (prenup) governing your financial situation, you will be subject to the state’s default family law rules regarding “community” property. Specifically, many or all of the money and/or debt accumulated while married can be considered joint property with no regard to who earned what.
The key risks associated with having no prenup include:
It is important to understand why you need a prenup. A prenup gives both parties the ability to agree ahead of time how their finances will be managed and protect themselves against future court decisions regarding those same finances.
Prenuptial agreements in California are typically misunderstood by the public despite being clearly defined under the California Family Code. The contract is defined as an agreement made between couples about to marry, and will be valid after the marriage.
Here are some common myths about Prenup and the truth behind them:
Myth #1: Only affluent couples need a prenup.
Reality: Individuals with moderate income or assets may use prenups to define property rights and to create a plan of how to manage those rights in case of separation or death.
Myth #2: Having a prenup discussion means you are planning on divorcing your partner.
Reality: Engaging in a prenup conversation with your potential partner allows for greater communication and understanding, which can ultimately lead to less conflict if disagreements arise in the future, especially about finances.
Myth #3: A Prenup always favors the wealthier partner
Reality: An agreement may include provisions for an individual’s inheritance and each party’s responsibilities to provide protection for both partners. This could include broader and greater financial support than the family court might allow.
You can create your own prenup in California, however the courts have very strict requirements under the California Family Code. It is highly advisable that each party receive independent legal counsel so that they may comply with the required provisions of disclosure, voluntarism and enforcement.
If there is no prenup or agreement in place, then property and financial issues will be resolved by the default laws of California. These include the community property rules which govern the division of all assets and liabilities acquired during the marriage.
You should complete your prenup prior to your wedding date so you are not under pressure to sign or that it later appears either party was pressured to sign. California law requires a seven day review period prior to signing. Completing this process early in your engagement provides sufficient time for full disclosure and adequate legal considerations.
The concept of prenups (or contracts) have existed since ancient times. They evolved from simple contract law and marriage settlement agreements. Today, prenuptial agreements in California are defined by legislation such as the Uniform Premarital Agreement Act as contained within the California Family Code.
