California Prenuptial Agreement Rules Are Strict
I have seen A LOT of malpractice by otherwise supposedly competent lawyers 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 prenup won’t be worth the paper it is written on.
Here’s my “prenup 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. The parties must fully disclose information about debt and assets. 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 debts of each spouse beyond the disclosure provided. The parties should execute this prior in time to the signing of the prenup. California Family Code § 1615(a)(2)(B).
5. Both parties should have counsel. Furthermore, 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 prenup without lawyers on both sides. That’s because the requirements to show that the other party was fully informed of rights and obligations is too onerous. Because 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).
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Although the code does not specifically require it, I always notarize my prenuptial agreements. Another tactic is to follow the agreement up with a postnuptial agreement for reinforcement.
Do a postnuptial too
Different rules apply to postnuptial agreements. So, if a court throws out the prenuptial agreement under the premarital agreement act, the same document as a postnuptial agreement may save the day
Gotta have counsel
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 for a court to throw out an agreement if it doesn’t meet the requirements of the code. Also, as mentioned above, don’t let your attorney fly solo on this. So, make sure the other party has counsel.
Get it right!
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.