California Prenuptial Agreement Guide
Thank you for visiting our California prenuptial agreement guide. We have created this brief guide below for California couples who are interested in obtaining a prenuptial agreement. Read on to learn more about California prenuptial agreements and how San Diego Esquire can prepare one for you. Contact San Diego Esquire for more information about our California prenuptial agreement drafting and review services. We provide affordable flat fee premarital agreement review services starting at $595. Our premarital agreement drafting service starts at $795. Work directly with our California premarital agreement attorney throughout the entire process.
What You Need to Know About California Prenuptial Agreements
A premarital agreement, often referred to as a prenuptial agreement, is a legally binding contract made between two parties prior to marriage. The prenuptial agreement will address how separate and community property will be divided between the couple upon legally separating or divorce, whether spouses waive spousal support, and inheritance rights.
Prenuptial agreements require both parties to perform complete financial disclosures. Additional documents may need to be executed after the prenup is signed to transfer any community property interest into a separate property asset/benefit.
California Family Code section 1612 details what parties to a premarital agreement may contract with respect to the following:
(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
(5) The ownership rights in and disposition of the death benefit from a life insurance policy.
(6) The choice of law governing the construction of the agreement.
(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.
There are many benefits of obtaining a prenuptial agreement. Our top 6 benefits of a California prenuptial agreement include the following:
- Protect Separate Property
A California prenup can be used to protect separate property rights. For example, if you own a business or professional practice, a prenuptial agreement will protect your business interest in the event of legal separation or divorce. It can limit your spouse from receiving half of your business interest/ownership in a divorce.
- Support Your Estate Plan
A prenuptial agreement can protect both party’s inheritance rights. Some parties obtain prenups to limit the type of property their spouse may receive in the event of death. Obtain a last will and testament after getting married to reaffirm your estate planning intentions.
- Define Community Property
A premarital agreement allows couples to define their community property interest. This includes detailing what bank and retirement accounts will be deemed community property. Couples can also specify whether income from business or their employment will be considered community property.
At San Diego Esquire, we cannot stress the importance of having language in the pre-marital agreement that details which incomes, profits, or assets will be considered community property. For example, if both party’s monthly income is put into a joint bank account which is used to pay a mortgage on a separate property asset, both spouses may obtain a community property interest in this asset unless the premarital agreement states otherwise.
- Protect Retirement Accounts
A benefit of a prenuptial agreement is that it can be used to protect retirement accounts. For example, if you are engaged and invested in a define benefit plan, the premarital agreement can include language which allows the pension to remain your separate property upon marriage. Additional forms may have to be completed after marriage to confirm the separate property interest of the benefited spouse.
- Protect Against Pre-Marital Debts
As student loan debts continue to grow, most couples are considering premarital agreement to protect the debt-free spouse from having to assume loan obligations of the indebted spouse. A prenuptial agreement can ensure the debt-free spouse is not burdened with paying off the debt in the event of legal separation or divorce.
- Limit the Amount of Spousal Support
A California prenuptial agreement can limit the amount of spousal support a party may receive upon legal separation or divorce. A prenup allows a party to agree to a fixed alimony amount for a specified period. Parties may also choose to waive spousal support.
Hire an experienced attorney to draft spousal support language for your prenup. When waiving spousal support, it is best for both parties to be represented by experienced lawyers.
- You Don’t Need a Lawyer for a Prenup
The California Family Law Code requires parties to have their prenup reviewed by independent lawyers to uphold its validity. Do not work with a legal document preparer in drafting a prenup. Save yourself a financial headache and hire a lawyer! Avoid websites such a Nolo, RocketLawyer and LegalZoom which promote DIY prenuptial agreements.
- You Can Draft a Prenup Yourself
We highly recommend couples work with an experienced prenuptial agreement attorney instead of drafting their own agreement. If you cannot invest $600 – $1,000 in obtaining a prenup, you may not need one. It is far less to obtain a prenup than pay attorney fees in a contested divorce! Do not rely on do-it-yourself legal websites, templates, or forms when drafting your prenup. Doing so may likely result in the prenup being challenged and deemed invalid upon legal separation or divorce.
- Only Rich People Need Prenups
Rich and middle-class couples benefit from prenups. Contrary to popular belief, prenups are not only for rich people. Obtaining a prenup can help establish future financial expectations. It can define how money will be handled throughout your marriage. Before getting a prenup, discuss the matter with your fiancé to make sure it is best for your circumstances.
- Prenups are Expensive
Compared to the cost of a divorce, the cost of a prenuptial agreement is far less in comparison. Most prenuptial agreements are inexpensive and well worth the cost. A prenuptial agreement should be viewed as “divorce insurance.” It protects your interest in the event of legal separation or divorce.
If you are looking for cheap prenup options, you might as well forgo getting a prenup all together (you will get what you pay for).
At San Diego Esquire, we provide affordable prenuptial agreement review and drafting services to California residents. Our review service starts at $595 flat fee (no hidden costs). Our drafting service starts at $795. California prenuptial agreement attorney Kymeshia Morris will work with you throughout the entire process. She will review or prepare the prenup and make revisions as required. Sign up for our service today to get started.
The first step in creating a prenuptial agreement is deciding whether you need one. You cannot use a prenuptial agreement to specify child custody, visitation or support. You can however obtain a prenuptial agreement to detail the separate and community property each party should receive upon legal separation or divorce.
Both parties should hire an attorney to ensure the prenup is drafted in conformance with state law requirements. Both parties who are represented by the same attorney may be in a direct conflict of interest. Contact us if your spouse needs help with finding an attorney at email@example.com. When you sign up for our services, we conduct an initial intake to make sure we fully understand your financial desires and any issues you may have before drafting or reviewing your prenup.
Discuss your financial circumstances with your fiancé. Be honest and keep the conversation professional. Consider counseling or mediation to maintain open and healthy communication. Make sure both parties agree to having the premarital agreement.
Prepare a list of each party’s assets and debts to include as financial exhibits in the agreement. Also determine whether either party wants to waive spousal support and limit inheritance rights. Your attorney will request this information upon conducting the initial consultation.
Contact premarital agreement attorney Kymeshia Morris to discuss how to create a prenuptial agreement in California at firstname.lastname@example.org.
California Family Code Section 1615 defines when a premarital agreement is not enforceable:
(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.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(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 he or she 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 he or she 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.
It is important for both parties to enter into a premarital agreement voluntarily. Unconscionable terms in the agreement may render is unenforceable.
If you are already married, you may want to consider obtaining a postnuptial agreement. Most married couples obtain postnuptial agreements in the event of infidelity or when the financial circumstances of a spouse drastically change. Case law regarding certain aspects of postnuptial agreements are limited in California. Hire an experienced attorney to draft your post-nup.