I have seen A LOT of malpractice by otherwise supposedly competent attorneys in the area of prenuptial agreements. The California law for prenuptial agreements is fairly strict for what will pass muster and what will be thrown out. If you don’t get it right, your agreement won’t be worth the paper it is written on. Here’s my “formalities” checklist:
1. The agreement must be in writing. California Family Code § 1611.
2. The agreement must be executed voluntarily. California Family Code § 1615(a)(1).
3. There must be full disclosure of financial obligations and property. California Family Code § 1615 (a)(2)(A).
4. There must be a waiver of further disclosure expressly waiving, in writing, any right to disclosure of the property or financial obligations of each spouse beyond the disclosure provided. This should be executed prior in time to the execution of the prenuptial agreement. California Family Code § 1615(a)(2)(B).
5. Both parties should be represented by counsel and each attorney should sign off on the prenuptial agreement. California Family Code § 1615 (c)(1). (Technically, California Family Code section 1615(c)(3) provides that a prenuptial agreement could be enforceable with only one attorney. However, it is harder and I don’t recommend it. I won’t do a prenuptial agreement without attorneys on both sides because the requirements to show that the other party was fully informed of rights and obligations is too onerous. It sets the single attorney up for a lawsuit. I simply won’t do it.)
6. Both parties must have had no less than seven calendar days to review the prenuptial agreement between the time it is presented in final form and it is signed. California Family Code § 1615 (c)(2).
Although it is not specifically required by the code, I always have my prenuptial agreements notarized. Another tactic is to follow the agreement up with a postnuptial agreement for reinforcement. Different rules apply to postnuptial agreements. So, if the prenuptial agreement is thrown out under the premarital agreement act, part of it may still hold up if it’s done as a postnuptial agreement as well.
When you are contemplating your own prenuptial agreement, make sure you do it with an attorney. Don’t rely on an online service or a paralegal service to prepare your documents. Too much can go wrong and it is very easy to have an agreement thrown out if it doesn’t meet the requirements of the code. Also, as mentioned above, don’t let your attorney fly solo on this. Make sure the other party is represented by counsel.
Again, I have seen a lot of attorneys go down in flames because an agreement ran afoul of the code. I have seen even more agreements go down in flames because the parties tried to do it without counsel. Word to the wise: Get it right.
For help and a free consultation regarding your prenuptial agreement, go to weberdisputeresoltion.com.
Shawn Weber, Attorney and Mediator