A prenuptial or premarital agreement is an important legal document. A prenuptial agreement, or premarital agreement, is a contract made between prospective spouses that takes effect upon marriage. A typical prenuptial (premarital) agreement may contract for a predetermined division of assets, arrangement of alimony or other support, and/or allocation of attorney's fees associated with the termination of marriage A prenuptial (premarital) agreement must be in writing, contain a full disclosure of assets before the marriage, and be signed by both husband and wife. Below are the most pertinent statutes relating to prenuptial or premarital agreements in California:
CALIFORNIA CODES
FAMILY.CODE
SECTION 1610-1617
1610. As used in this chapter:
(a) "Premarital agreement" means an agreement between prospective
spouses made in contemplation of marriage and to be effective upon
marriage.
(b) "Property" means an interest, present or future, legal or
equitable, vested or contingent, in real or personal property,
including income and earnings.
1611. A premarital agreement shall be in writing and signed by both
parties. It is enforceable without consideration.
1612. (a) Parties to a premarital agreement may contract with
respect to all of the following:
(1) The rights and obligations of each of the parties in any of
the property of either or both of them whenever and wherever acquired
or located.
(2) The right to buy, sell, use, transfer, exchange, abandon,
lease, consume, expend, assign, create a security interest in,
mortgage, encumber, dispose of, or otherwise manage and control
property.
(3) The disposition of property upon separation, marital
dissolution, death, or the occurrence or nonoccurrence of any other
event.
(4) The making of a will, trust, or other arrangement to carry out
the provisions of the agreement.
(5) The ownership rights in and disposition of the death benefit
from a life insurance policy.
(6) The choice of law governing the construction of the agreement.
(7) Any other matter, including their personal rights and
obligations, not in violation of public policy or a statute imposing
a criminal penalty.
(b) The right of a child to support may not be adversely affected
by a premarital agreement.
(c) 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.
1613. A premarital agreement becomes effective upon marriage.
1614. After marriage, a premarital agreement may be amended or
revoked only by a written agreement signed by the parties. The
amended agreement or the revocation is enforceable without
consideration.
1615. (a) A premarital agreement is not enforceable if the party
against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and,
before execution of the agreement, all of the following applied to
that party:
(A) That party was not provided a fair, reasonable, and full
disclosure of the property or financial obligations of the other
party.
(B) That party did not voluntarily and expressly waive, in
writing, any right to disclosure of the property or financial
obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an
adequate knowledge of the property or financial obligations of the
other party.
(b) An issue of unconscionability of a premarital agreement shall
be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a
premarital agreement was not executed voluntarily unless the court
finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented
by independent legal counsel at the time of signing the agreement or,
after being advised to seek independent legal counsel, expressly
waived, in a separate writing, representation by independent legal
counsel.
(2) The party against whom enforcement is sought had not less than
seven calendar days between the time that party was first presented
with the agreement and advised to seek independent legal counsel and
the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented
by legal counsel, was fully informed of the terms and basic effect
of the agreement as well as the rights and obligations he or she was
giving up by signing the agreement, and was proficient in the
language in which the explanation of the party's rights was conducted
and in which the agreement was written. The explanation of the
rights and obligations relinquished shall be memorialized in writing
and delivered to the party prior to signing the agreement. The
unrepresented party shall, on or before the signing of the premarital
agreement, execute a document declaring that he or she received the
information required by this paragraph and indicating who provided
that information.
(4) The agreement and the writings executed pursuant to paragraphs
(1) and (3) were not executed under duress, fraud, or undue
influence, and the parties did not lack capacity to enter into the
agreement.
(5) Any other factors the court deems relevant.
1616. If a marriage is determined to be void, an agreement that
would otherwise have been a premarital agreement is enforceable only
to the extent necessary to avoid an inequitable result.
1617. Any statute of limitations applicable to an action asserting
a claim for relief under a premarital agreement is tolled during the
marriage of the parties to the agreement. However, equitable
defenses limiting the time for enforcement, including laches and
estoppel, are available to either party.