A prenuptial agreement can be a smart decision for you and your spouse. Despite some common misconceptions surrounding prenups, they are not only for the extremely wealthy or couples anticipating divorce. Prenuptial agreements can protect both parties regardless of the specifics of the relationship. You could avoid a great deal of financial hardship later by signing or drafting a premarital agreement now. For a prenuptial agreement to be legally valid in the state of California, however, a few important details must exist.
The Uniform Premarital Agreement Act (UPAA) is the law in California regarding the creation of prenuptial agreements. This act outlines the basic criteria a prenup must meet to be legally valid in the state. It has been in place since 1986. According to the act, a premarital agreement should be in writing. Although technically the law says in writing or on the record, a written prenup will be much stronger in court than a verbal one.
The court will look for certain details in writing to validate a prenuptial agreement or enforce its terms. The party bringing the agreement must expressly give full and reasonable disclosure regarding his or her financial assets and debts. The party must list all property-related obligations in writing on the prenuptial agreement, giving the other party adequate knowledge of the financial situation. Only then may the other party sign with informed consent.
Counsel From an Attorney
The UPAA also states the party signing the prenuptial agreement must have at least seven days between receiving the document and signing it, to give him or her adequate time to receive independent legal counsel. The signing party may take the prenup to a family law attorney for review. It is within the party’s right to have an attorney review the agreement before signing.
The law gives the party the right to an attorney separate from the other spouse’s legal representation, with one exception. The party waives the right to a separate legal review if he or she received (in writing) full information on the terms of the agreement and signed a document confirming the receipt of this information and expressly waiving the right to an attorney. Even after signing, terms regarding alimony in a prenup may not be enforceable if the signing spouse did not hire an independent lawyer to review the contract.
The UPAA stipulates that a premarital agreement will only become effective upon marriage. Even if you create, sign and legalize a prenup in California, its terms will not apply to your relationship until and unless you and your spouse finalize the marriage. Postponing your marriage will postpone the initiation of the prenuptial agreement. If you break up and call the wedding off, your spouse will not have the legal right to enforce the terms laid out in a premarital agreement. Only marriage will make the agreement effective.
Undue influence, duress and fraud will invalidate a prenuptial agreement. It is crucial for you as the spouse signing the agreement to do so with full knowledge and consent to what you are doing. Forcing someone to sign a prenup with threats or intimidation will invalidate the document. Using deceit to trick someone into unknowingly signing a prenup will also render the document invalid. The signing party must knowingly and voluntarily sign the prenup for the courts to enforce its terms.
Finally, as the spouse receiving the prenuptial agreement, you must confirm your consent to its terms in writing. An unsigned prenuptial agreement is typically unenforceable, even if the other spouse received verbal consent to the arrangement. Since verbal premarital contracts often come down to hearsay, most courtrooms in California will not enforce their terms. Instead, you must put your signature on the document after receiving all necessary information and legal counsel, if necessary, to have a valid prenup. Using a prenuptial agreement lawyer to convey a prenuptial agreement can help you and your spouse ensure the legality of your document.