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Prenuptial agreement in California

A premarital agreement (prenuptial agreement) in California is the topic of this blog post. Prenuptial agreements in California are governed by the provisions of Family Code sections 1600 through 1617.

The use of prenuptial agreements in California has increased over the past twenty years as growing numbers of California residents wish to have certain details regarding how their community and separate property and debts as well as other marital rights including the right to spousal support memorialized in a (hopefully) binding prenuptial agreement. Note that unless both parties were represented by independent counsel of their own choosing any waiver of spousal support will be unenforceable.

Anyone considering the use of a prenuptial agreement in California should make sure that they strictly follow all of the statutory requirements as failure to do so will result in a Court finding the agreement unenforceable.

Family Code § 1612 states that,

“(a) Parties to a premarital agreement may contract with respect to all of 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.”

Note that even if both parties have their own independent counsel that does not guarantee that a court will uphold a waiver of spousal support in a prenuptial agreement.   Family Code § 1615(C)(2) states that both parties must have at least seven (7) 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 or the agreement may be considered unenforceable.

Family Code § 1615 should be carefully reviewed by anyone considering the use of a premarital agreement as it is quite detailed as to the circumstances under which a prenuptial agreement may be held unenforceable.

Attorneys or parties in California who would like to view a portion of a 22 page prenuptial agreement for California that includes brief instructions, lists of property and financial obligations for both parties, all required statutory wording and two notary acknowledgments that is sold by the author can see below.

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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.


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