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Woman reads a prenuptial agreement

As you prepare for marriage, you’re probably thinking about everything but a prenuptial agreement. However, even people in rock-solid relationships sometimes choose to sign a prenuptial agreement or prenup. Every state, including California, has prenup laws. In this guide, we review what you need to know about creating a prenuptial agreement in California. For hands-on expert guidance tailored to your personal situation, consider enlisting the services of a trusted financial advisor.

California’s Prenuptial Agreement Law

In California, individuals can draft their prenups. However, without a legal background, it is easy for the prenuptial agreement to be invalidated. Therefore, it is wise to hire a lawyer to write a prenup as well as making sure you understand the state’s Prenuptial Agreement Law and what your options are.

The Golden State’s Uniform Premarital Agreement Act (UPAA) dictates the requirements for prenups in California. The UPAA states that a premarital agreement is a contract that two prospective spouses sign before entering marriage. It is not effective until the date of marriage. Other requirements include a written contract, legal terms within the prenup and the voluntary signatures of both parties. Each party must also have received complete information regarding the other’s properties, debts and income.

Additionally, once the prenup is created, each party has at least one week to seek independent legal counsel before signing. When both parties sign the prenup, it must be signed by a notary to be valid.

Prenups in California Limitations 

Just as there are several requirements for what a prenup must include, there are several things that a prenup cannot include. If a prenup includes the following, a court will not enforce the prenup:

  • Anything regarding child custody or child support
  • Any spousal maintenance requirements if the signing spouse opted out of receiving independent legal counsel
  • Any language requiring illegal acts of a spouse
  • Unfair, unjust, exploitative or deceptive terms
  • Non-financial requirements including clauses such as demanding that one spouse loses weight or changes appearance
  • Any terms regarding the relationship

What Could Invalidate a California Prenup

As with any legal document, violating the agreement can invalidate a prenup. If a prenup is not appropriately executed when drawn up and signed, it will be invalid. For example, if the prenup is only a verbal agreement, it will not be honored in a court of law. If the couple does not marry after signing a prenup, the prenup will not be enforced.

If a couple’s circumstances change after marriage, it is possible to change a premarital agreement in California. To do so, both spouses must agree to any changes and take the legal steps necessary to change the original prenup. Alternatively, the couple could consider a post-nuptial agreement.

Steps to Take Before Signing a Prenup

Engaged couple talks with lawyer about a prenup

If you would like to sign a prenuptial agreement, there are several steps you should take. First, be sure to read the entire contents of your prenup to ensure that you understand what is in it. Regardless of who prepared the document, it is essential to know what it says and ask for clarification if there is something you disagree with. Then, be sure to consult with a family attorney or other attorney that specializes in prenuptial agreements. This person can help you navigate the document and understand if it is all in your best interests.

Finally, take the time to think about it before you sign. Even after consulting an attorney, you might have your doubts. Entering a marriage, with or without a prenup, is an important decision. Ensure that you are doing the best thing for yourself long-term and do not sign anything that can negatively impact you in the future.

How to Keep Assets Separate Without a Prenup

Some people choose to get a prenup because each potential spouse has property or other assets they’d like to protect. These assets may include physical property, retirement or other accounts and more. Even if a couple decides to share some of their assets that they bring into the marriage or accumulate during the marriage, it can be wise to have a prenup.

It might be wise to create a trust before marriage. This way, it will be clear which assets fall under the trust and are separate. If you own property such as a home and want to keep it separate, ensure that you continue to only pay for it with money earned outside the marriage and not from a joint fund. This will help prove later that it is not shared property.

Finally, if you have an individual account, be sure to keep it separate throughout the marriage. Do not deposit any paychecks into the individual account and do not use it to pay for community expenses such as rent, a mortgage or otherwise.

Do You Need a Prenuptial Agreement?

Just because you choose to get a prenup does not mean that you think the relationship will end. It simply means that you understand that some things can happen and that you do not want to be unprepared.

Even if your relationship is stable now, you may want to consider getting a prenuptial agreement. Each couple will have different reasons that they want to sign a prenup. People who should consider a prenup are those with assets before marriage, single parents, business owners, grandparents and business professionals. Additionally, if one or both has debt, they may want to sign a prenup to protect the other in case of their early demise.

If the couple were to divorce in the future, it could be helpful to agree that the two would want to protect each other financially. A prenup can help to prevent extensive court proceedings and promote early and open communication between the couple.

The Takeaway

Bride and groom with Golden Gate Bridge in the backgroundNobody enters a marriage expecting that it will end. However, many people still choose to get prenups to ensure that their assets are protected and help them stay on a clear financial path. Each state has unique prenuptial agreement laws, and California’s are relatively easy to understand. Ensure that if you do choose to get a prenup that you have an attorney write it for you, and that you follow all the necessary legal guidelines to ensure that your prenup is valid.

Tips on Personal Finance

  • A financial advisor can offer valuable advice about how to modify your financial plans and adjust your investment portfolio in preparation for marriage. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free matching tool can connect you with several professionals in your area within minutes. If you’re ready, get started now.
  • While the cost of hiring a lawyer to prepare a prenup may seem prohibitive, it could end up saving you a significant sum – and stress – later on. But there are several ways to save on nuptial expenses, and there are several tax breaks you can claim for your wedding expenses.

Photo credit: ©iStock.com/nicoletaionescu, ©iStock.com/Tero Vesalainen, ©iStock.com/NetaDegany

Ashley Chorpenning Ashley Chorpenning is an experienced financial writer currently serving as an investment and insurance expert at SmartAsset. In addition to being a contributing writer at SmartAsset, she writes for solo entrepreneurs as well as for Fortune 500 companies. Ashley is a finance graduate of the University of Cincinnati. When she isn’t helping people understand their finances, you may find Ashley cage diving with great whites or on safari in South Africa.
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