If you are about to enter into a California Prenuptial Agreement, you should know what the legal requirements are. California has had requirements in regards to a prenuptial agreement being valid since 1986, but in 2002, due to a landmark decision by the California Supreme Court in the divorce case of Barry Bonds, the San Francisco Giant’s baseball player, the legal requirements of a Prenuptial Agreement in the State of California were amended. Our Orange County Prenuptial Agreement Attorneys are here to help you understand these requirements.
The amendments which came to affect on January 1, 2002 and apply to any California Prenuptial Agreement executed after that date, provide the following legal requirements:
- The California Prenuptial Agreement was entered into voluntarily with each party having independent counsel.
It is best if both parties are represented by independent counsel. The only way to get around this requirement is if the spouse who is not represented by a separate attorney when signing the agreement, signs a separate written acknowledging document that states that they have been advised to retain an attorney but have declined to do so. This must be separate than the prenuptial agreement itself.
- There must be at least 7 days between the receipt of the California Prenuptial Agreement, and the individual signing the prenuptial agreement.
At least 7 days must pass between the receiving party obtaining the prenuptial agreement and that party signing the agreement. This allows the receiving party to have time to obtain independent legal counsel to review the agreement. As most agreements need to be revised, it is suggested that the first draft of the prenuptial agreement should be presented to the other party months before the wedding date, not weeks, in order to allow the parties sufficient time to negotiate the terms.
- The parties must provide complete information to the other party about their property and finances, prior to the singing of the California Prenuptial Agreement.
As stated above, a significant component to determining whether or not a prenuptial agreement is valid is if it was voluntary and that can be decided with the question of unconscionability. An agreement will determined by a Court to be unconscionable and thus unenforceable if there was not full disclosure of a party’s property and financial responsibilities to the other party. The other party can waive their right to receiving this information.
- Fraud, Undue Influence and Duress
Just like a regular contract, a prenuptial agreement cannot be entered into under duress, fraud, or undue influence. The previous legal requirements of independent legal advice, timing, and full disclosure are all important requirements to show that a premarital agreement is not affected by coercion, fraud, undue influence or duress.
- Special Rule for Spousal Support in a California Prenuptial Agreement.
If the prenuptial agreement includes a provision waiving or restricting spousal support, then it is unenforceable if either party was not represented by independent legal counsel. Provisions against spousal support will be unenforceable if they are unconscionable as well. It is impossible to know in advance whether the spousal support provision is unconscionable as California Courts have not defined unconscionability in this context.
- Public Policy
If there are provisions in the prenuptial agreement imposing certain standards of conduct such as religion, moral, or sexual conduct upon the parties during the marriage, it could make the entire or part of the agreement unenforceable. A Prenuptial Agreement which attempts to punish a party as a result of that party’s “fault” during the marriage, such as cheating during the marriage, are generally held to be unenforceable as such a clause is contrary to the public policy of California’s no-fault divorce.
If considering a prenuptial agreement, or if you have just been provided with one from your future spouse, make sure you seek independent legal counsel. Our Orange County Prenuptial Agreement Attorneys are here to help ensure that your rights are covered.
We encourage you to consult an attorney for advice about your individual situation. This site and its information is not legal advice, nor is it intended to be. Feel free to get in touch by electronic mail, letters or phone calls. Contacting us does not create an attorney-client relationship. Until an attorney-client relationship is established, please withhold from sending any confidential information to us.