How to get a prenuptial agreement in California

Getting married in the Golden State and wondering whether to prenup or not? You aren’t alone. Many couples now prefer to protect their assets via a prenuptial agreement, aka a prenup. They reduce conflict and stress if the marriage doesn’t have a happily ever after. However, all written prenuptial agreements signed in California must abide by state laws; otherwise, they will be invalid.

Read on to learn more about California’s prenup laws. You’ll also understand how to get an enforceable and valid prenuptial agreement. 

How to get a prenuptial agreement in California

Do prenups work in California? The quick answer is, yes, they do. Prenuptial agreements are enforceable in the state, but the written prenuptial agreement needs to meet the state’s legal requirements. 

In California, a couple can write their own premarital agreement. However, it will be difficult to hold up in court if it doesn’t abide by the mandates set forth by California’s Uniform Premarital Agreement Act (UPAA).

Here’s our in-depth guide to creating a strong and valid prenuptial agreement that will reduce uncertainties and increase transparency. It also makes dealing with your assets (financial or otherwise) smoother in case of a divorce, legal separation, or death. 

What is a prenuptial agreement?

A prenuptial agreement is a legally binding contract that both parties sign before their marriage. A valid prenuptial agreement takes effect on the day of the wedding. A prenup dictates how the current and future financial and non-financial assets will be distributed if the couple decides to end their marriage. 

California prenuptial agreements commonly address the following provisions: 

• Property rights and marital assets distribution
• Spousal support obligations
• Debt allocation
• Inheritance rights 
• Trust ownership
• Retirement and pension settlement
• Life insurance beneficiary
• Tax filing and payment
• Day-to-day living expenses
• Responsibility towards pets

California prenups can’t have enforceable clauses around:

• Child custody
• Child support
• Visitation rights 
• Parenting time
• Childbearing 
• Frivolous expectations (mandating spouse loses weight or maintains a certain appearance)
• Requests promoting divorce
• Illegal acts 
• Acts that violate public policy

While California prenuptial agreements can’t have clauses around child support and child custody, they can include clauses that protect any future children a couple may decide to have. 

For instance, the premarital agreement can decide:

• Who will raise children
• Who will stay home and
• How the children are educated

Do you need a prenup? 

Prenups have generally gotten a bad rep as nobody wants to think of their marriage ending. Or they have been associated as a contract for the rich and famous.
 
However, that’s not what it’s all about. When a prenuptial agreement is done correctly, it’s beneficial to all prospective spouses. It lays the foundation for financial transparency, open communication, and alignment of marital expectations. 

By drafting and signing a written prenuptial agreement, both partners understand that things can change throughout a relationship and that it’s best to be prepared. Signing a valid prenuptial agreement can give you and your future spouse peace of mind and also help prevent extensive court proceedings. 

In the end, going for a prenup is a personal choice. An independent attorney can help you make an informed decision. 

Get your California prenuptial agreement

Getting married and want to have an enforceable California prenup? Follow our step-by-step guide.

1. Hire qualified and separate attorneys 

Each party should hire a licensed and qualified attorney to represent their interests. Why get independent legal counsel? You and your future spouse bring different assets to the table and could, therefore, have varying priorities. It’s the lawyer’s fiduciary duty to best present your needs. 

A law firm or lawyer with expertise in family litigation is probably the best person to guide you through this process and help you avoid drafting errors and other pitfalls. California also has stringent laws on the validity of a prenup, so hire someone with in-state experience.

Wondering where to find experienced legal counsel? You can ask family and relatives for recommendations or let LegalZoom help you find a qualified attorney in California. 

2. Disclose all financial assets and liabilities

California law mandates both partners to completely disclose their assets and debts. This process will help you and your future spouse establish financial security. 

Here are some examples of assets that can help you create a comprehensive list: 

• Bank accounts
• Real estate
• Investment funds
• Stocks
• Retirement savings
• Artwork
• Furniture
• Jewelry
• Vehicles 

Bank loans, credit card debt, car loans, mortgages, and student loans are examples of financial obligations that should be disclosed under debts. 

Failure to disclose or intentional omission of assets and/or liabilities can lead to the prenup becoming null and void or getting overturned in court. In such instances, you could potentially lose more money. 

3. Define community and separate property 

This part can get a bit confusing, so let’s begin with how California’s community property laws define separate and community property. 

Separate property is any asset or property owned by a single party before marriage. Let’s say your future spouse owns a house and car before the wedding: the house and car are their personal property, and both would be considered separate assets. 

Community property is property acquired during the course of marriage with joint effort or funds by either partner. 

Separate property in a prenuptial agreement is not subject to division. In case of divorce, the separate property remains with the original owner. Community property or marital assets, on the other hand, can be divided when the marriage ends. 

How will community property get divided? California is a community property state, and therefore, the state’s community property laws dictate how assets will be split. The majority of California courts split community property as 50/50. 

In the prenup, clearly define property division terms—what will be deemed as separate and community. If you want to protect that property, it’s best to list it as a separate asset. This step will again prevent extensive court proceedings. 

4. Address spousal support provisions 

Spousal support or alimony refers to the financial assistance one spouse might have to provide to a financially disadvantaged partner. Addressing spousal support and any finances prior to marriage increases clarity and reduces court battles during the divorce process.  

This clause is also very beneficial in instances where you or your spouse opt not to work and stay home to raise the children. 

Under California law, couples have the option to waive or limit future spousal support if they have legal representation. If you don’t address the spousal support issues in your prenup, then California courts will decide whether alimony is required and what the amount should be. 

5. Determine marital debt 

Debts acquired during the marriage are also known as marital debt. Here’s an example: Mark and Susan are married, and Mark decides to go back to school and takes a student loan of $20,000. This student loan would qualify as marital debt. A year later, Susan and Mark filed for divorce. If they hadn’t signed a written prenuptial agreement, Susan could be liable for paying up to $10,000 of Mark’s loan. 

To avoid such surprises, include how marital debt will be paid off in case of divorce or legal separation.

6. Decide what to do with the marital home

Who will take ownership of the marital home, the place where the married couple was staying? Per California's community property laws, the prenup can be used to decide whether the marital home is a community or separate property. It’s also advisable to list the terms for sale, ownership transfer, and home use if there is a divorce, death, or legal separation. 

7. Determine ongoing financial responsibilities 

It’s a good idea for both parties to discuss and negotiate how they are going to share financial obligations. This discussion could include topics like having a separate or joint bank account, payment of rent and utilities, and how big-ticket items will be purchased. 

8. Pick tax filing status 

Prenuptial agreements in California can also include provisions for taxes. Decide how you will file taxes—jointly or separately. Being on the same page about expenses, income, and taxes will save you from a lot of hassle and headaches during the divorce process.

Speak to a tax expert to understand how to file taxes and protect your personal property and assets.

9. Should your prenup have an end date? 

Prenuptial agreements in California don’t require an end date and are designed to go into effect when there’s a divorce or death. The majority of California prenups are valid indefinitely unless there’s a specific end date or sunset clause. 

So, why do people add a sunset clause? Some people want to revisit the relationship and reassess the agreement, while others use it to protect personal property and any appreciating assets, like a business. 

Talking to a divorce or family attorney can help you make the right decision about including an expiration date for your prenuptial agreement. 

10. Draft and sign the agreement

Once both parties have ironed out all the above terms, it’s time to get it in writing. California courts don’t enforce verbal prenuptial agreements. 

The signing of the prenuptial agreement requires some careful consideration. The signing of the prenuptial agreement requires some careful consideration. For example, if one spouse hasn't voluntarily signed the paperwork or didn't follow California’s seven-day rule, the marital agreement will not hold.    
                      
Wondering how to write a prenup? We recommend working with an attorney who is an expert in prenuptial agreements. They will help you get the terminology right and cover all the bases. 

11. Make sure the prenup follows California laws

California's Uniform Prenuptial Agreement Act (UPAA) governs prenuptial agreements in the state. While you can write your own prenup, it’s best to consult a lawyer to ensure your document meets state requirements and is legally enforceable. 

California prenup laws

As mentioned earlier, the state of California has strict rules on what can and can’t be protected via a prenup. The CUPPA also has guidelines on what makes a document legal and valid. 

What makes a prenup valid and legal?

We’ve listed guidelines that will help draft a legally binding and valid California prenup. The legal document should be: 

1. Written, notarized, and voluntarily signed by both parties
2. Entered without coercion or force
3. Fundamentally unfair to both parties, and
4. Given for review at least seven days before the date of signing 

We feel it’s important to re-emphasize that verbal prenuptial agreements are not legally enforceable. 

How to invalidate a prenup? 

According to state laws, a California prenuptial agreement would be invalid if:

• One party’s sign was obtained by force and without an independent attorney
• One party didn’t sign the agreement voluntarily 
• One party didn’t give valid consent to the document’s terms
• One party didn’t get sufficient time to review the agreement
• One party fails to disclose a significant sum of assets and debts 
• The agreement includes illegal acts, terms, and provisions
• The agreement is against public policy
• The agreement is only verbal 
• The agreement includes child custody clauses
• The agreement includes child support provisions

What is California’s seven-day rule for prenups? 

A law unique to the Golden State is the seven-day rule. This is a relatively new law. The Family Code § 1615 (c)(2)(B) statute mandates that a full seven calendar days be given to both parties to review the final premarital agreement. 

Therefore, a final prenuptial agreement that one spouse hands over and both parties sign during the car to the wedding venue will not be valid. This rule applies regardless of whether either party has their own attorney. 

Here’s one way to follow this rule: You and your partner can sign a separate document acknowledging receipt of the final prenup draft on a specific day. This prevents any disputes over there not being enough time to review the final terms. 

California prenuptial agreements: FAQs

California prenups can be tricky and confusing. These commonly asked questions will increase your understanding of California laws and help you draft a valid prenuptial agreement.

Do you need a lawyer for a prenup in California?

California requires both parties to seek independent legal counsel for a prenup only if they will include or alter spousal support provisions in the agreement. You and your partner decide that Partner A will provide “x” per month to Partner B as future spousal support. For this clause to be enforceable, you will both need your own attorney during the signing. 

LegalZoom’s legal plans can help you access an independent attorney at a lower rate than what a traditional law firm attorney charges. 

How much does a prenup cost in California (CA)?

The costs can vary based on location, complexity of the document, and attorney fees. In California, a prenup costs an average of $975. 

LegalZoom makes getting a prenup affordable and stress-free. For a flat fee, an attorney will create a customized document for you that represents your best interests. 

Can I write my own prenup in California? 

Yes, you can write your own prenup in California. However, the document must meet all of the state’s requirements to be considered legally valid. This can be quite tricky for those without a legal background, and therefore, we don’t recommend going down this path. You don’t want a written agreement that doesn’t hold up in court. It’s best to consult an independent attorney specializing in California prenups to minimize future disputes.  

Can California prenups be modified? 

Yes, California prenuptial agreements can be altered as many times as required before they are signed. Once both parties sign the prenup, it becomes legally binding. 

Both spouses need to give their valid consent to change a prenuptial agreement once it’s been signed. A new, separate document needs to be drafted. This is also known as a postnuptial agreement or postmarital contract. 

A law firm with expertise in divorce and family law can help draft the necessary legal documents to override the original prenuptial agreement. 

Is a prenup worth it? 

Getting a prenup may be the last thing you want to think about while getting married. But it’s not something only for the famous and wealthy. When done properly, written prenuptial agreements offer financial security, facilitate honest and open discussions, and strengthen a relationship. They also help you avoid lengthy court battles if the marriage ends in divorce. 

And while you can write your own California prenup, we have highlighted that the document needs to adhere to California courts’ stringent requirements. So, it’s advisable to work with an experienced attorney to ensure that both of you have a happy married life.