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CA Prenuptial Agreements: What You Must Know!

Terrance Heath

Quite often I receive phone calls from an excited bride or groom inquiring about a “prenup.” He or she explains that friends have told one or the other they “need” a prenup. He or she then asks if I would be available to do a prenup for them.

by Terrance Heath, Attorney

The questions I ask next often take the person aback. “When is the wedding?” followed by… “Does your fiancé [or fiancée, as the case may be] have a lawyer yet?”

“Well, the wedding is two weeks from Saturday,” is often the answer to the first question; and “We have already come to an agreement on terms. We thought we would just hire you to write it up,” is the most common answer to the second question.

At times like this, the last thing a bride or groom “to be” wants to hear is legalese. But as a responsible lawyer it is my job to advise the law.

Marriage and Registered Domestic Partnerships are
Special Acts under CA Law

It’s important for all couples to know that marriage and registered domestic partnership are special acts under California law. These ”special acts” have significant affect on the parties’ property rights, rights of support, and parental rights. California law gives couples great discretion over their private agreements, but the courts are limited in their ability to enforce these agreements.

Premarital agreements, often referred to as prenuptial agreements or simply as “prenups,” are regulated in California under California Family Code sections 1600 to 1617. These provisions equally apply to those entering into registered domestic partnerships.

What Makes a Prenup Enforceable?

Only agreements that meet specific requirements will be enforced. Following is a high level list of some of the aspects that make a California prenup enforceable:

1) The prenup must be in writing and signed by both parties.

2) Representation by an independent attorney is important to enforcement. I insist that both parties must have independent legal counsel.

3) A 7 day window is required between the time a proposed prenup is presented to the “intended” and advised to seek representation and the time the prenup was signed.

4) Full asset and debt disclosure must be made between the parties.

5) The prenup must not be in violation of public policy or a statute imposing a criminal penalty.

Bottom Line…It Takes Time to Reach Agreement

Even when couples are relatively confident in the terms of the agreement, ensuring that both parties are “on the same page” takes time. In reviewing a proposed agreement and disclosures, the attorney is responsible for explaining the client’s rights and responsibilities affected by the agreement, and for making recommendations necessary to protect his client’s interests.

Resulting negotiations might be extensive, and appropriately last more than seven days.

Insure that Your HeartBeat doesn’t Turn into HeartAche!

Getting married is a time of great excitement and high emotion. The back and forth of the negotiation process of a prenup can often be a stressful and time-consuming process.

Give yourself plenty of time to hammer out the details and nuances of a prenup that works for both parties. Consulting with an attorney well in advance of your wedding date may go a long way to both lowering the anxiety and insuring that your prenup is enforceable!

Terrance Heath is a is a graduate of UC Berkeley and Boston College Law School. He is a partner at Heath-Newton and specializes in family law.