Most people don’t want to think about prenuptial agreements during the early throes of romantic love. It is a good idea to consider the issue if you own or anticipate owning substantial assets, however, particularly if there is a large wealth gap between you and your spouse. In California, enforcement of prenuptial agreements is limited by the California Prenuptial Agreement Act.
California Community Property Law
You might have heard that, under California community property law, “each spouse gets half” in the event of a divorce. This is only partly accurate, and it is highly misleading. California community property law is complex and filled with small nuances that can make a big difference when it comes time for property division.
The general principle is that each spouse gets half of the marital estate (subject to modifications such as child support). The marital estate includes some, but not necessarily all, of both spouse’s assets. It does not include assets gained by either spouse before the marriage, for example, and it does not include other property such as property that is inherited by one spouse.
What You Must Do to Ensure That Your Prenuptial Agreement Is Enforceable
California courts will only enforce a prenuptial agreement under the following conditions:
Each spouse must have received complete financial information from the other spouse before they sign the agreement (which means that concealing a bank account, for example, might invalidate the agreement).
Each spouse must have (i) at least one week to review the agreement or (ii) the opportunity for a lawyer look over it, before they sign the agreement.
Each spouse must either (i) be represented by their own lawyer (one that is not also representing the other spouse) or (ii) receive complete written information about the terms of the agreement and sign an affidavit acknowledging receipt, naming the provider of the information and waiving their right to be represented by a separate lawyer.
What Needs to Be Included in Your Prenuptial Agreement
Space limitations prevent the inclusion of every term that might need to be included in a prenuptial agreement. Some of the most pertinent, however, include:
Waiver of alimony (unless the result would be manifestly unjust)
Rejection of community property (each spouse’s property belongs to him or her rather than belonging to the marital estate)
Waiver of inheritance rights (as long as it doesn’t harm minor children)
Ownership of a death benefit given by a life insurance company
The creation or modification of a will or trust
Choice of law (the parties can agree that the law of some other state will govern the prenuptial agreement, but they cannot agree that the family law of another state will govern).
Don’t Try This at Home
At CKB Vienna LLP, there is no such thing as a detail – everything matters to us. If you are considering drafting or signing a prenuptial agreement or if you are anticipating having to litigate one, call us at 909-980-1040 or contact us online. We serve clients throughout Rancho Cucamonga, including Alta Loma and Etiwanda.