Pre-Nuptial Agreements In California

When a couple decides to marry they hardly ever think of the financial and legal consequences of their union.  Hardly ever does either party think about what happens if the marriage does not work out, let alone make plans if they do indeed obtain a divorce later on.  However, there are legal tools available to those about to get married that protect each spouse should the marriage not work out.  Yes, it is an awkward and somewhat insulting topic to bring up with the one you love, but for many the drafting of a Pre-Nuptial agreement makes sense both financially and personally.

Generally, Pre-Nuptial Agreements are subject to the general laws of contracts. However, given the personal nature of the agreement, there are specific laws dealing with Pre-Nuptial Agreements that provide protections to prospective spouses. For a Pre-Nuptial Agreement to be valid in California it must first conform to the formalities codified by the California Legislature, namely:

- The Agreement Must Be In Writing

- The Agreement Must Be Signed by both Parties

Furthermore, a Pre-Nuptial Agreement also can only deal with a limited amount of topics including property rights, waiver of or limiting the amount of spousal support, life insurance, estate planning, choice of law and other matters not limited by public policy.  A Pre-Nuptial Agreement cannot attempt to waive child support, encourage dissolution of the marriage by promising substantial value in the event of divorce, be an agreement to pay for companionship, altering mutual obligations during marriage, agree to raise children in a particular religion or penalize for fault.

Lastly, a Pre-Nuptial Agreement is not enforceable if the party against whom enforcement is sought proves that he or she did not execute the agreement voluntarily.  To overcome the defense of involuntary execution, it must be shown that the party was represented by separate legal counsel or was given ample opportunity to seek counsel and expressly waived that right.  Further, the Agreement must be presented to the unrepresented party at least seven days before executed.  There also must be a full disclosure of the rights and obligations affected by the execution of the agreement.  Lastly, the party must have the legal capacity to enter into a contract and not be subject to duress, undue influence or fraud.

While Pre-Nuptial Agreements have a bad reputation, they can protect the assets and the rights of parties contemplating marriage.  Further, should the marriage end in divorce, a proper Pre-Nuptial Agreement can ease the pain and stress of dissolution proceedings.

It should be noted that even property subject to a pre-nuptial agreement can be altered (transmuted) by the parties’ behavior during marriage which could render the pre-nuptial agreement void.  Before entering into a pre-nuptial agreement both parties should seek the advice of a licensed and knowledgeable attorney to discuss the pros and cons of entering into a pre-nuptial agreement.

This Article is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using the article or the information contained in the article you understand that there is no attorney client relationship between you and the publisher. Any information in the article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.