PRENUPTIAL AGREEMENTS (PRENUPS)

  Generally speaking, a written agreement between two parties in anticipation of marriage that controls or limits the characterization of property or spousal support is legal and enforceable in California. “Prenuptial agreement,” “antenuptial agreement,” and “premarital agreement” are terms that describe “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” (Family Code § 1610(a).)

Historically, “prenups” were disfavored as against public policy and would not be enforced by the courts. The law on prenups has evolved, requiring a court to interpret the agreement with the relevant law at the time of drafting, but today (2023), most courts will enforce the provisions of a validly executed agreement.

Yes, under current law, parties contemplating marriage can agree, in writing, to eliminate spousal support obligations to each other. California law creates obligations for each spouse to support each other; however, the court will enforce a knowing and intelligent waiver of spousal support if agreed by the parties after advice of counsel and a period of time to contemplate before the agreement is enforced.

 No. Under California law, any attempt to limit or eliminate the obligation of either parent to support their children is considered void and against public policy.  Family law courts have jurisdiction to enforce support obligations against either parent during and after divorce. Any written agreement to the contrary is unenforceable. (Family Code §1612(c))

  California law states that all property acquired during marriage by either spouse through their effort, skill, or time, is considered community property. (Family code §760) However, California will enforce a valid prenuptial agreement (see more on this below) that limits or prevents the characterization of property as “community.”

  A prenup that contains provisions that limit or deny attorney fees may be enforceable by a court. However, any attempt to limit an obligation to litigate issues concerning children (such as support or custody) is not subject to such contractual limitations.

Prenups must be carefully drafted to be enforceable. Because family law judges operate as a “court of equity”, a judge reviewing a premarital agreement can refuse to enforce an “unconscionable” term that is patently unfair to one spouse, or where a spouse did not have an ability to understand the agreement and was not provided with independent counsel prior to signing an agreement. The following is the statute describing the rules of enforcement.

§ 1615. Enforcement; Specified court finding requirements

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

(1) That party did not execute the agreement voluntarily.

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed.

(2) One of the following:

(A) For an agreement executed between January 1, 2002, and 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 advised to seek independent legal counsel and the time the agreement was signed. This requirement does not apply to nonsubstantive amendments that do not change the terms of the agreement.

(B) 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. This requirement does not apply to nonsubstantive amendments that do not change the terms of the agreement.

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations the party was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that the party received the information required by this paragraph and indicating who provided that information.

(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

(5) Any other factors the court deems relevant.