Do I need a California Prenuptial Agreement (“Prenup”)? A Guide

As “Kimye” becomes Kim and Kanye, you may be wondering—did they have a prenup? And, do I need one? News sources are saying that they did have a prenup and are even attributing a peaceful split to this prenup. Marriage is a huge decision. Most people do not know that marriage is a contract. Not only do you marry the love of your life, you also enter a binding contract regarding your financial future. Without a prenup, every dollar you earn after you say “I do” is 50% your spouse’s. Either the state of California determines the terms of your financial future or you can work them out before your marriage with an experienced Marin County prenup attorney. 

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What is a Prenuptial Agreement? 

A prenup is a written contract entered into by a couple prior to marriage that covers what will happen to certain property rights and assets upon divorce. A prenup is a good choice for couples regardless of their financial status. Although it may be tempting to write up a prenup with your fiancé one evening, valid prenups must comply with California law. 

A prenuptial agreement can be a wise choice for couples of all financial standing. To have a valid prenup in California, a couple must draw up the contract per specific laws and regulations.

What is California’s Prenuptial Agreement Law?

Prenups in California are basically governed by the Uniform Premarital Agreement Act (UPAA). For a prenup to be valid, the UPAA requires the following:

1) A written contract signed by the parties.

2) That the signatures be obtained voluntarily and without intimidation, deceit, or duress.

3) Signature from a notary. 

4) The parties to seek independent legal counsel at least 7 days before signing the prenup.

These are the main requirements for drawing up a prenuptial agreement that will hold up in a court of law. It is wise for a couple to invest in a lawyer’s assistance when creating a premarital agreement. Help from an attorney can answer questions, quell concerns and result in a document the courts in California will enforce. A Marin County prenup attorney can guide you through the steps necessary to create a valid prenup.

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How did the Barry Bonds case Impact California Spousal Support?

Bonds met Susann (“Sun”) Margreth Branco in 1987. They eloped to Las Vegas in 1988 and eventually had two children. In 1994, the couple separated. In 1997, they had their marriage annualed by the Catholic Church. 

Prior to marriage, Sun signed and agreement with Bonds where she agreed to waive her right to his earnings and acquisitions during marriage. When the parties signed the agreement, Bonds was making $106k per year. At the time of their divorce, Bonds’ earnings had skyrocketed. 

Sun requested the Court invalidate the prenup. The case went all the way to the California Supreme Court which sided with Bonds. However, a lot of people sided with Sun because Bonds had an attorney present during the signing and negotiations. Sun did not have an attorney. In response, the legislature enacted Family Code Section 1618. 

Family Code Section 1615(a) provides, as follows:

(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

(1) That party did not execute the agreement voluntarily.

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Can a Prenup Cover Child Custody?

Under the UPAA, a prenup may address various right regarding marital property. These rights include the right to buy, sell, or transfer property, and the division of property upon divorce and death, among other things. A prenup may not contain illegal terms or cover child custody or child support. A prenup cannot include requirements for a spouse to commit an illegal act, non-financial requirements like that a spouse should be a certain weight, or dictating the terms of a relationship. If you have been asked to sign a prenup that contains any of these types of terms, consult with an experienced Marin prenup lawyer to review the agreement. 

Also, as mentioned, the agreement needs to be in writing and signed by the parties. If the courts did not require prenups to be in writing, then there would be too much room for abuse. Because prenups are very serious and can determine a person’s financial future, verbal prenups cannot be enforced. 

Can a California Prenup Cover Spousal Support?

The answer to this question is “yes.” If you do not come to an alternative agreement regarding spousal support, the State of California will determine how much your former spouse and the length of time you will have to pay him or her. If you are uncomfortable with that idea, then you should consider discussing a prenup with your spouse to be. 

However, California does not all you to limit or waive spousal support if it is deemed unconscionable. Because of this, you may want to hire an experienced California prenup attorney to help you. An unconscionable agreement might result in one party retaining substantially more income and assets to the extent it would be unreasonably unfair. If your prenup is improperly drafted, it could be set aside. 

Can a Prenup be Modified?

Many people enter into prenups because their future spouse promises to modify the agreement at a later date. Do not rely on such promises. If you are planning to execute a prenup, make sure you review it with an attorney. Also, take some time to think about your future and what it might look like if things do not go as planned in your marriage. 

If you already executed a valid prenup, you and your spouse can jointly modify it. These modifications will likely come with additional costs and added stress. Also, if a couple has already married but never obtained a prenup, they can enter a post-nuptial agreement regarding their property and assets. 

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Family Law Marin

Do Prenups and Post-nups Reduce Stress?

For some people, prenups and post-nups reduce stress.  This is especially the case if the marriage starts to dissolve. If the parties have already worked out the property and spousal support aspects of their case in a prenup, then there is less room for conflict.

Do I Need a Marin County Prenup Attorney?

 For more information about prenups and post nups, contact us for a free consultation 





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