How Does California Law Treat Prenuptial Agreements in Divorce Proceedings?

What Is a Prenuptial Agreement?

A prenuptial agreement is a legal document drawn up before a couple marries that specifies various financial matters in the event of a divorce later. It can spell out how financial assets and debts will be divided, along with real property.

Sometimes, people view these cynically, assuming that the couple involved never expected their marriage to last. The reality is that a prenuptial may never be used, but it can be valuable for helping the couple understand each other’s financial circumstances and attitudes.

A prenup can also protect both parties from losing valuable assets, such as family heirlooms if the marriage does end. There may also be cost savings in time saved in legal fees for negotiating the division of assets.

Often, people think prenups are only for wealthy couples. But any couple with any asset or debt, no matter how small, should consider a prenup. It can help avoid stress later, and there’s always the possibility that financial circumstances could change during the marriage.

Is California an Equitable Property or a Community Property State?

Across the U.S., most states use one of two ways of viewing property that must be divided in a divorce (Alaska uses both): equitable or community property.

• Equitable property. This approach is used to try and divide property not necessarily equally but equitably. For example, suppose one spouse gave up a career to stay home and raise children, and they have little in the way of separate or marital property. In that case, the court may recognize their contribution to the marriage in whatever fashion it deems equitable.
• Community property. This holds that any property acquired during (and in some cases, separate property if used for the benefit of both spouses) is community property and should be divided as close to 50/50 as is reasonably possible. That doesn’t mean the couple would be forced to share a house; instead, one spouse might own the house while the other gets a cash settlement of the house’s value.

California is a community property state. Without a prenuptial agreement, each spouse could face losing assets they thought were their own for good.

What Happens When There’s a Prenup and a Couple Divorces in California?

A legally valid prenuptial agreement could allow a couple to override California’s community property laws and divide assets unequally, according to the prenup terms. This is the best way to avoid having assets divided against their will. The community property laws are serious, and a prenup may be the only option to overcome them.

What Makes a Prenuptial Legally Binding in California?

As noted above, a legally binding prenup can help overcome community property laws, but if the prenup doesn’t follow the state’s requirements, it may be invalidated. That’s why it’s crucial to work with an experienced family law attorney who can help you ensure your agreement can withstand being deemed invalid.

There are several requirements, including:

• Full disclosure of assets and debts. Each spouse must provide full records of all assets and debts. If one spouse is found to have tried to hide any, the prenup may be invalidated (and if any assets were deliberately hidden and come to light, that can have severe legal and financial impacts on the spouse who tried to hide them).
• Attorney for each spouse. The couple must not use the same attorney when negotiating and finalizing the prenup.
• Waiting period. Each spouse must have the final document and complete a seven-day waiting period before they sign the agreement.
• In writing. The prenup must be in writing. Oral or video prenups are not legally binding in California.
• Signatures and notarization. Both spouses must sign the agreement, and it must be notarized.

What Could Cause a Prenup to Be Invalidated or Unenforceable?

These aren’t guaranteed to cause a prenup to be tossed out of divorce court, but it’s worth avoiding the following to reduce risk.

• Lifestyle choices. A prenup could possibly include requirements for things like family planning or infidelity, but there’s no guarantee the court will enforce them. An infidelity clause, in particular, could violate California’s no-fault divorce laws.
• Clauses regarding child custody or support cannot be addressed in a prenuptial; they can only be addressed in family law court during the divorce when the court will place the highest priority on what’s in the child’s best interests.
• Illegal acts. One spouse cannot require the other to perform illegal acts in a prenup.
• Duress. If one spouse is coerced by the other to sign the prenup, it may not be enforceable.

One complex item is waiving spousal support (alimony). California law allows the spouse who would receive financial support to waive it in a prenup. However, there are specific legal requirements for this that must be followed.

It’s advisable to work with an experienced attorney when developing prenups to ensure they’re enforceable.

What Should I Do if I Have Concerns About How Our Prenuptial Agreement May Affect Our Divorce?

Call The Law Offices of Paul J. Duron as soon as possible at 562-205-8527 to schedule a free consultation. Divorce is one of life’s most stressful events, and adding concerns over the impact of a prenuptial agreement can increase that stress. Our team of experienced, knowledgeable family law attorneys can review your prenup and divorce plans to help you understand what might be possible.