Prenuptial Agreement in California 2023 – All You Need to Know

By Quinn & Dworakowski, LLP | Aug 21, 2023

A prenuptial agreement allows a couple to determine certain finances prior to marriage, and determine how property would be split if they were to divorce. For some people, this feels contrary to how a marriage should be approached. However, a prenuptial agreement does not spell divorce. In fact, it can often provide a sense of financial security that makes couples happier in their marriage.

A prenuptial agreement is simply a legal tool that allows you to determine the division of your marital assets, rather than being subject to the state’s community property laws if you and your partner can’t negotiate an agreement. Prenuptial agreements can also outline property and financial rights during a marriage. It’s a smart decision for many couples to consider a prenuptial agreement.

Understanding the Prenuptial Agreement Basics

A prenuptial, or premarital, agreement is a written contract created by a couple prior to marriage that comes into effect when the parties get married. It addresses each party’s rights and responsibilities to assets, debts, and other relevant matters during marriage and divorce. It can determine:

  • The property gained during a marriage that will not be considered marital property
  • How assets and debts will be divided in divorce
  • Inheritance rights for children from prior marriages
  • Spousal support terms
  • Where spouses may live after separation
  • The rights of a surviving spouse to certain property if the other spouse dies

There are many other provisions that can be listed in a prenuptial agreement that are unique to the individual couple’s needs. A prenuptial agreement can provide both spouses with certainty that they will be financially stable if a divorce happens. To be effective, a prenuptial agreement must be legally enforceable. This is made easier with a Prenuptial Agreement Attorney in Orange County, CA, who can protect each party’s rights and be sure that the agreement follows state and local laws.

Community Property Laws in California

If a couple divorces without a prenuptial agreement, they must reach a compromise for their separation agreement. A separation agreement has many similar terms as a premarital agreement. However, it’s more stressful and more emotionally difficult during the process of a divorce, and there is a consequence if spouses can’t reach an agreement. If spouses cannot create a separation agreement for property division, their marital assets and property are subject to community property laws.

Community property laws provide each spouse with an equal share of marital assets, regardless of any outside factors in a marriage. Marital property includes all assets gained during a marriage, with some exceptions.

If one spouse receives a gift or an inheritance during a marriage, this is considered their separate property. If one spouse obtains property by using their own separate assets, the acquired property is also separate. Separate assets can also become marital assets, either purposefully or accidentally.

The court assumes that all assets obtained during a marriage are marital assets unless they are shown evidence that proves otherwise. The court will divide all marital assets equally. Prenuptial agreements allow you to avoid these requirements and split marital and separate assets how you want.

Legal Requirements for a Valid Prenuptial Agreement

The basic requirements for a prenuptial agreement to be found valid include:

  1. Both spouses voluntarily sign it and have the time and opportunity to review the contract prior to signing it.
  2. Before signing, both spouses have a complete and reasonable disclosure of all assets, income, debts, and financial obligations of the other party.
  3. Each spouse has the chance and ability to review the contract with an attorney.
  4. Both spouses entered into the agreement voluntarily and have the mental capacity to understand their assets, debts, and the implications of creating a legal document.

If the court determines that the terms of a prenuptial agreement are very unfair to one party, it will not enforce the agreement.

FAQs

Q: Can I Do My Own Prenuptial Agreement in California?

A: You are legally allowed to create a prenuptial agreement yourself, but it’s not recommended. Without an attorney, it is more likely that an agreement doesn’t follow the proper state and local laws. If your prenuptial agreement is not legally enforceable, then the time spent creating it will have been wasted. The court will not enforce any prenuptial or other marital agreement if it doesn’t meet the legal requirements. If you and your spouse divorce, you will either have to reach a separation agreement or your property will be divided according to community property law. Any other provisions that you and your spouse made for your marriage will be void.

Q: Does a Prenup Need to Be Notarized in California?

A: Yes, a prenuptial agreement has to be notarized in California. One of the requirements of a legally enforceable contract and marital agreement is that the agreement is willingly signed by both parties in the presence of a notary. Both parties must also have the document for 7 days prior to signing it so that an attorney can review the terms.

Q: How Much Money Is Enough for a Prenup?

A: The cost of a prenuptial agreement will depend on how simple or complex the agreement is. It may range anywhere from $1,000 to $5,000 or more. Factors that influence the cost include:

  • The amount of property that each party has
  • Whether each party hires an attorney or if one attorney is mediating
  • How collaborative the process is
  • If the agreement involves unique and complex terms

Attorney costs rely on the amount of experience they have. An attorney’s fees will also depend on whether they charge a flat fee for the service or charge an hourly rate.

Q: How Do I Set Up a Prenuptial Agreement in California?

A: Both parties should list their assets and debts as well as understand the value of their separate property. They should determine the financial goals they each have during the marriage and what rights each party has to the separation and marital assets during and after marriage. The agreement should also cover provisions like spousal support and retirement benefits in the event of divorce. Parties should then negotiate these aspects with the help of an experienced attorney.

Protect Your Interests While Negotiating a Marital Agreement

At Quinn & Dworakowski, LLP, our team has 40 years of experience in family law. We can help you draft, review, and negotiate a prenuptial agreement so that it addresses your financial concerns. Contact us today.

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