Prenuptial Agreements FAQ

A prenuptial agreement, also called a premarital agreement or prenup, is a written contract entered into by a couple before marriage that defines how property, assets, debts, and other financial matters will be handled during the marriage and in the event of divorce or death. In California, prenuptial agreements are governed by the Uniform Premarital Agreement Act, codified in California Family Code Sections 1610-1617. Under Family Code Section 1611, a premarital agreement must be in writing and signed by both parties to be enforceable. It becomes effective upon marriage.

Prenuptial agreements are generally enforceable in California if they meet statutory requirements. Under Family Code Section 1615, a premarital agreement is not enforceable if the party against whom enforcement is sought proves that they did not execute the agreement voluntarily, or the agreement was unconscionable when executed and, before execution, that party was not provided a fair, reasonable, and full disclosure of the other party's property and financial obligations, did not voluntarily and expressly waive such disclosure in writing, and did not have adequate knowledge of the other party's property and financial obligations. Courts will scrutinize prenuptial agreements carefully to ensure fairness and proper execution.

California Family Code Section 1611 establishes strict formal requirements for prenuptial agreements. First, the agreement must be in writing; oral prenuptial agreements are not enforceable. Both parties must sign the agreement voluntarily. Under Family Code Section 1615(a)(1), involuntary execution is grounds for invalidating the agreement. Each party should have independent legal counsel, though this is not absolutely required. However, Family Code Section 1615 strongly suggests that having separate attorneys helps demonstrate the agreement was entered into voluntarily and with full understanding.

The agreement must be executed before the marriage; it becomes effective upon marriage under Family Code Section 1611. There must be full financial disclosure by both parties under Family Code Section 1615(a)(2), unless properly waived in writing. Under recent amendments, if the party against whom enforcement is sought was not represented by independent counsel at the time of signing, the agreement is not enforceable if that party did not have at least seven calendar days between when the agreement was presented and when it was signed. This seven-day requirement under Family Code Section 1615 ensures neither party is pressured into signing immediately. The agreement should clearly state it is a premarital agreement entered into in contemplation of marriage. Both parties must have capacity to contract.

Full and fair disclosure of assets, debts, income, and financial obligations is a critical requirement for enforceable prenuptial agreements in California. Under Family Code Section 1615(a)(2), lack of proper disclosure is a basis for finding an agreement unenforceable. The statute requires that before execution of the agreement, each party must receive a fair, reasonable, and full disclosure of the other party's property and financial obligations. This disclosure should include a comprehensive list of all assets including real estate, bank accounts, investments, retirement accounts, business interests, and personal property, as well as all debts and financial obligations.

The disclosure must be specific and detailed, not vague or general. California courts have held that general statements like "I own various properties" are insufficient. However, under Family Code Section 1615(a)(2), disclosure may be waived if the party voluntarily and expressly waived in writing any right to disclosure beyond the disclosure provided, or had or reasonably could have had adequate knowledge of the property and financial obligations of the other party. A waiver must be knowing, intelligent, and voluntary. Courts scrutinize waivers carefully, especially when there is significant disparity in wealth or sophistication between the parties. Failure to make adequate disclosure can render the entire prenuptial agreement unenforceable.

Unconscionability is a key legal concept that can invalidate a prenuptial agreement in California. Under Family Code Section 1615(a)(2), an agreement can be found unenforceable if it was unconscionable when executed. Unconscionability has both procedural and substantive components. Procedural unconscionability relates to the circumstances surrounding formation of the agreement, including factors such as surprise, deception, high-pressure tactics, unequal bargaining power, lack of opportunity to read or understand the agreement, lack of independent legal representation, complexity or hidden terms in the agreement, and presentation of the agreement shortly before the wedding when one party feels compelled to sign.

Substantive unconscionability relates to the actual terms of the agreement and whether they are overly harsh or one-sided. Courts examine whether the terms unreasonably favor one party, whether one party would be left destitute while the other retains wealth, whether spousal support provisions are grossly inadequate, and whether the agreement shocks the conscience in its unfairness. Under Family Code Section 1615, even if an agreement is unconscionable, it can still be enforced if proper disclosure was made or properly waived. However, California courts apply heightened scrutiny to prenuptial agreements compared to commercial contracts because of the confidential relationship between engaged couples. An agreement that is extremely one-sided may be unconscionable even with full disclosure if one party had no meaningful choice but to agree.

Yes, a prenuptial agreement can include provisions waiving or limiting spousal support in California, but such waivers face particular scrutiny. Under Family Code Section 1612(c), any provision in a premarital agreement regarding spousal support may be subject to review by the court. Unlike provisions regarding property division, which are generally enforceable if the agreement meets formal requirements, spousal support waivers must also pass additional tests. Family Code Section 1615 provides that a spousal support waiver may be unenforceable if it is unconscionable at the time of enforcement, not just at the time of execution.

This means courts can review whether enforcement of the waiver would leave one spouse destitute or a public charge. The unconscionability standard for spousal support provisions is evaluated at two points: when the agreement was executed and when enforcement is sought. Courts will consider factors including the length of the marriage, changes in circumstances since execution, each party's earning capacity and needs, whether the disadvantaged spouse would qualify for public assistance without support, and the overall fairness of enforcement given current circumstances. In In re Marriage of Pendleton and Fireman, the California Supreme Court held that spousal support waivers are subject to heightened scrutiny. Parties should be represented by independent counsel when agreeing to spousal support waivers.

No, prenuptial agreements cannot validly address child custody or child support in California. Family Code Section 1612(b) explicitly states that the right of a child to support may not be adversely affected by a premarital agreement. This means any provisions in a prenup that attempt to limit, waive, or predetermine child support are void and unenforceable. California public policy strongly protects children's rights to financial support from both parents, and parents cannot contract away their children's support rights. Child support is determined according to the statewide uniform guideline in Family Code Section 4055 based on both parents' incomes, timeshare, and other factors, regardless of any prenuptial agreement.

Similarly, child custody and visitation decisions must be made based on the child's best interests at the time of separation or divorce under Family Code Sections 3020-3040. Courts cannot be bound by advance agreements about custody because circumstances and the child's best interests cannot be predicted before the child is born or before a separation occurs. Any provisions attempting to predetermine custody arrangements are unenforceable as contrary to public policy. However, prenuptial agreements can address financial matters related to children in limited ways, such as establishing educational trusts or clarifying that certain assets will be set aside for children from prior relationships. Courts will sever invalid child-related provisions while potentially enforcing the rest of the prenuptial agreement under Family Code Section 1614.

Prenuptial and postnuptial agreements serve similar purposes but are executed at different times and governed by different legal standards. A prenuptial agreement is signed before marriage and governed by California Family Code Sections 1610-1617, the Uniform Premarital Agreement Act. It becomes effective upon marriage under Family Code Section 1611. A postnuptial agreement, also called a marital agreement, is signed after the couple is already married and is governed by general contract law principles and Family Code Section 721, which imposes confidential relationship fiduciary duties.

The key difference is the legal relationship between the parties at signing. Before marriage, the parties are dealing at arm's length, though courts still scrutinize prenups for fairness. After marriage, California Family Code Section 721 establishes that spouses have a confidential relationship requiring the highest good faith and fair dealing. This means postnuptial agreements face even stricter scrutiny than prenuptial agreements. Under In re Marriage of Bonds, postnuptial agreements are subject to a presumption of undue influence that must be rebutted by showing the agreement was fair, made with full disclosure, and entered into without any undue influence. For prenups, the challenging party must prove unconscionability and lack of disclosure under Family Code Section 1615. Both types can address property division, spousal support, and estate planning, but neither can adversely affect child support.

Yes, prenuptial agreements can be modified or revoked after marriage, but California law requires strict compliance with formalities. Under Family Code Section 1614, a premarital agreement may be amended or revoked after marriage only by a written agreement signed by both parties. The amendment or revocation is enforceable without consideration, meaning neither party needs to provide something of value to make the change valid. However, the modification must be in writing; oral agreements to change or cancel a prenuptial agreement are not enforceable.

Because the parties are now married, any modification or revocation is actually a postnuptial agreement subject to the heightened fiduciary duty standards of Family Code Section 721. This means courts will scrutinize modifications to ensure they were made with full disclosure, without undue influence, and with fundamental fairness. Both parties should have independent legal counsel when modifying a prenup, though this is not legally required. Under Family Code Section 1614, the revocation must be clear and unambiguous. Mere failure to follow the prenup's terms does not automatically revoke it; courts require explicit written revocation signed by both parties. Couples considering modification should execute the amendment well before any separation to avoid claims of duress or overreaching.

California courts interpret prenuptial agreements using principles of contract law while applying heightened scrutiny due to the confidential relationship between engaged couples. Under Family Code Section 1613, the same consideration requirements apply to premarital agreements as to other contracts, and the mutual promises to marry constitute sufficient consideration. Courts begin with the presumption that prenuptial agreements are valid and enforceable if they meet the formal requirements of Family Code Section 1611. The burden is on the party challenging the agreement to prove grounds for non-enforcement under Family Code Section 1615.

Courts interpret the language of the agreement according to its plain meaning, and ambiguities may be construed against the party who drafted the agreement. California courts examine whether the agreement was voluntarily executed, which requires analysis of factors including whether each party had independent legal counsel, whether there was adequate time to review the agreement before signing (at least seven days if unrepresented under Family Code Section 1615), whether the terms were explained in language the party understood, and whether there was any coercion, fraud, or undue pressure. Even with valid disclosure and voluntary execution, courts will not enforce unconscionable provisions. Courts have broad discretion to refuse enforcement of spousal support waivers that would be unconscionable at the time of divorce. Severability provisions are important; under Family Code Section 1614, if part of the agreement is unenforceable, courts may enforce the remainder unless the invalid provision was essential to the parties' bargain.

California prenuptial agreements commonly include several key provisions addressing financial matters and property rights. Under Family Code Section 1612(a), parties can contract with respect to the rights and obligations of property whenever and wherever acquired or located. Property classification provisions specify which assets will remain separate property and which will be community property, often stating that all property acquired before or during marriage will remain the separate property of the acquiring spouse. These provisions modify the default community property rules that would otherwise apply under Family Code Sections 760-772. Debt allocation provisions clarify that each spouse remains responsible for their premarital debts. Income and earnings provisions may specify that each spouse's income during marriage remains separate property rather than community property.

Spousal support waivers or limitations are common, though subject to review for unconscionability under Family Code Section 1615. Estate planning provisions address rights upon death, including waiving rights to inherit under California Probate Code intestacy statutes, waiving rights to a family allowance or other probate claims, and confirming that each spouse may dispose of their separate property by will without restriction. Business protection clauses protect a spouse's business interests by confirming the business remains separate property. Real property provisions address how homes and other real estate will be owned and divided. Disclosure acknowledgments confirm that both parties made full financial disclosure or knowingly waived disclosure. Dispute resolution provisions may require mediation or arbitration before litigation. Sunset clauses may specify that the agreement expires after a certain number of years of marriage or upon certain events.