*Please note that our office does not generally handle pre-marital agreement and post-marital agreement cases. This page is for informational purposes only.*
Based in San Diego, the family law attorneys at Wilkinson & Finkbeiner, LLP, have experience drafting and negotiating prenuptial agreements and postnuptial agreements. Although our office does not generally handle these matters any longer, we have experience dealing with such agreements as they arise in divorce and separation cases.
San Diego Prenuptial Agreements
Premarital agreements, also called prenuptial or prenup agreements, are contracts between two people that are getting married or establishing a registered California domestic partnership. Prenup agreements can be extremely complex and if not done exactly as to how the law requires, there is a strong likelihood that the agreement will be invalidated by a court.
Premarital agreements in San Diego courts are governed by Family Code 1600, et seq., under the “Uniform Premarital Agreement Act” enacted into law by the California legislature. There are also a slew of important California Appellate cases that relate to the validity and enforceability of premarital agreements, which bear on how carefully the agreements must be prepared and executed.
San Diego Post-Marital Agreements
These are agreements drafted after the marriage has taken place, but before either party separates, divorces, leaves, or dies. These contracts contain provisions similar to those commonly found in premarital contracts.
A postnuptial agreement may not be executed in contemplation of legal separation or divorce. Postnuptial agreements may only be implemented to perform two functions, (1) to change (“transmute”) the character of property from separate to community or vice versa or (2) to amend or revoke a premarital agreement. Generally, a postnuptial agreement may not be used to waive or limit the following duties: (1) the right of either spouse to support the other during or in the event of separation, (2) support of the party’s minor child, (3) fidelity and (4) any other agreement which promotes or encourages dissolution of the marriage.
Postnuptial agreements can get very complicated because such an agreement may alter property rights, title, and may also trigger significant tax implications. Our San Diego divorce attorneys can advise you on the impacts of executing a postnuptial agreement.
Requirements for a valid premarital agreement in San Diego, California
We often explain to our clients that premarital agreements, from our expert experience, are only valid and enforceable if the following requirements are met:
- The agreement is signed by both parties and notarized by a Notary Public.
- The “final” agreement is given to both parties 7 days before they sign it, which must occur before the marriage actually takes place.
- Each party must provide a material disclosure of their finances, including income, assets and debts.
- Each party must be represented by an attorney.
- The agreement must not be procured by fraud, deceit, coercion or duress.
- The parties must sign a “waiver of further disclosure” of financial information stating that the information they received from the other party is sufficient for purposes of the agreement.
What Rights Are Included in a Prenuptial Agreement?
California Family Code Section 1612 identifies the specific issues that a premarital agreement may include, which are:
- The rights and obligations regarding property rights
- The rights to buy, sell, exchange, etc. and manage property
- Each party’s rights to property upon the parties’ divorce or separation
- The right to make a will, trust or other testamentary disposition
- The rights to receive and give life insurance death benefits to each other and third parties
- The “choice of law” regarding the agreement (i.e. what state’s law will govern the validity of the agreement)
- The rights of each party regarding spousal support, with caveats; and
- Any other issue that the parties wish to include that is “not against public policy”
Can the parties to a premarital agreement contract have penalties if a party commits adultery?
Probably not. Because Section 1612 states parties can agree to whatever they want, so long as the agreements are not against public policy, an agreement that purports to establish a “fault” for the divorce will be against public policy and therefore invalid.
Can the parties agree to waive or limit alimony or spousal support in a premarital agreement?
Yes, however, it is presumed that a limitation or waiver of alimony is not enforceable unless certain criteria are met. Family Code 1612 specifically states, “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.”
Can child custody and child support be included in a prenup?
Child custody and child support agreements can not be included in a prenup under California law.
Does a premarital agreement have to provide “consideration” to both sides?
Under traditional contract law, a contract is only valid if there is an offer, acceptance, and each party gives something to the other party within the contract terms (i.e. “consideration”). The law on the validity of premarital agreements varies from these traditional requirements, and a premarital agreement will be valid (assuming the other requirements are met) without consideration if it is properly executed and signed by the parties. (See Family Code Section 1611).
Despite the “validity” of a prenup, can it still be ruled “unconscionable?”
Yes. The California family court judges have the ability to rule, on the record, that a premarital agreement was validly executed yet unenforceable if at the time it is sought to be enforced it would be “unconscionable.” California Family Code Section 1615 provides significant insight into this issue and should be carefully read. We have provided this code section in the following paragraph. (See also Family Code 1612(c) regarding spousal support).
Enforceability of Premarital Agreements
California Family Code Section 1615 provides very specific rules with regard to the enforceability of premarital agreements. A prenup is not enforceable against the party that wishes to get out from the terms of the prenup if that party shows any of the following:
- The party did not execute the agreement voluntarily.
- The agreement was unconscionable at the time it was executed because they were not provided a full disclosure of assets, they didn’t waive the right to receive disclosures, and they didn’t already have knowledge of the other person’s finances.
- The party was not represented by counsel or they did not provide an express waiver of that right.
- The party did not have 7 days to review the agreement.
- The party was not “fully informed” of all their rights if unrepresented by counsel.
- The party executed the agreement under duress, fraud, or undue influence; or
- The party argues that “any other factors” (deemed relevant by the court) show that the premarital agreement should not be enforceable.
Where can I get a sample premarital agreement in California?
You can likely find a variety of “templates” online or through companies that provide legal documents through the internet. However, extreme caution should be taken when relying on such documents to be valid and enforceable, for all the reasons we described above. A premarital agreement is extremely important because it helps determine the rights and responsibilities of parties during marriage and upon the filing of a divorce, legal separation or annulment case. Due to the significant requirements the law places on ensuring premarital agreements are negotiated in good faith, they are not procured under fraud, duress or coercion, and because the law requires each party to provide adequate financial disclosure to the other and have an attorney represent them in the negotiation and terms of a premarital agreement (absent a written waiver of the right to an attorney, which the court would often view presumptively as obtained by coercion or duress itself), it is not wise to try and prepare and execute a premarital agreement on your own.
Contact a San Diego Prenuptial & Postnuptial Agreements Attorney
Unfortunately, our firm no longer drafts or reviews premarital or postnuptial agreements, except in very limited circumstances.