DIY Prenup in California

By David Carnes

A prenuptial agreement is an agreement that outlines the property rights of a couple who intend to marry in the event that they later separate. In some but not all cases, the terms of a prenuptial agreement prevail over state law requirements concerning the disposition of property of couples that separate or divorce. Couples often sign prenuptial agreements when one spouse is considerably wealthier than the other. In California, Sections 1610-1617 of the California Family Code govern prenuptial agreements. It is possible to draft a binding prenuptial agreement without the assistance of a lawyer.

Subject Matter

A prenuptial agreement may cover the rights and obligations that apply to husband and wife with respect to property and debts acquired either before or after the marriage, the disposition of property if the couple are separated or divorced; the disposition of the death benefits of a life insurance policy, the creation of a will or trust to dispose of property covered by the agreement, and other matters related to the property of either spouse. Clear, specific and concise drafting will make the agreement more difficult to challenge in court.

Formalities

A prenuptial agreement must be in writing for it to be enforceable. Each party has the right to a full disclosure of the other party's financial assets and obligations. If either party waives that right, the other party must allow the waiving party seven days after the waiver to examine the agreement before signing it. Each party must either be represented by separate counsel or waive the right to separate representation. Both parties must sign the agreement after reading its contents. The agreement becomes effective on the date of the marriage.

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Restrictions

Provisions in a prenuptial agreement that purport to govern child custody, child visitation rights or child support payments will not be enforced. A court may also refuse to enforce a provision of a prenuptial agreement that is illegal, that encourages divorce, or that is grossly unfair to one party.

Enforcement

California courts do not always enforce prenuptial agreements. They are entitled to look at conditions prevalent at the time the agreement was signed, as well as conditions prevalent during the marriage to determine if the agreement is so unfair to one party that it would violate public policy to enforce it. A spouse may also block enforcement of the agreement if he proves that his signature was involuntary under California law; if he proves that did not retain separate counsel prior to signing or he was not provided with full financial disclosure from the other spouse, he can block enforcement.

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How to Revoke a Prenuptial Agreement

References

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