Premarital Agreements FAQ

• Are there specific requirements to a make a prenuptial agreement valid?
• What are the primary reasons people execute premarital agreements prior to marriage?
• Is there a difference between “ante nuptial” and “prenuptial” agreements?
• Does my fiancé need his or her own attorney?
• Do I have to disclose all my finances?

Are there specific requirements to a make a prenuptial agreement valid?

California law outlines several requirements to have a valid and enforceable prenuptial or premarital agreement. 

To be enforceable, the agreement must be voluntarily entered into.  Under California law, voluntariness is determined by several factors.  First, the spouse against whom enforcement is sought must be represented by his or her own attorney or effectively waive the option to be represented by his or her own attorney.  This means that if you retain an attorney to draft a prenuptial agreement, your spouse must be represented by his or her own attorney, or waive the option of seeking the advice of his or her own attorney before signing the agreement.  Second, the spouse against whom enforcement is sought must have at least 7 days to review the agreement before signing it.  Third, the spouse against whom enforcement is sought must be informed of the terms and effect of the agreement.  Finally, full financial disclosure is required.

The court will also refuse to enforce if the agreement is unconscionable, or extremely unfair, at the time either party seeks to enforce or establish the validity of the agreement.  Under California law, an agreement is unconscionable and thus unenforceable against a spouse who did not receive full and fair disclosure of the other spouse’s property or financial obligations, for example.  If a spouse waives his or her right to this full disclosure, then the waiver must be voluntary and executed in the proper manner. 

What are the primary reasons people execute premarital agreements prior to marriage?

Premarital agreements allow you and your future spouse to contract out of the default California laws regarding the division of community or separate property in the event of dissolution, legal separation, death or some other event specified by you and your spouse.  Prenuptial agreements also allow for you and your spouse to determine spousal support issues.   Premarital agreements can be integrated with an estate plan to effectively and devise a more complete plan for all of your property. 

Is there a difference between “ante nuptial” and “prenuptial” agreements?

A pre-nuptial, or premarital agreement, is an agreement between two prospective spouses made before marriage and becomes effective when you and your spouse marry.  Since the Latin word “ante” means “before”, ante nuptial means the same thing as prenuptial.  A post-nuptial agreement is an agreement between spouses who are already married that is designed to accomplish the same objectives as a prenuptial agreement.  This means that you and your spouse can enter an agreement regarding the division of your property in the event of a dissolution or legal separation, even after you are already married. 

Our experienced prenuptial and post-nuptial agreement attorneys look forward to advising and assisting you with negotiating and drafting an agreement to achieve your goals.  Our attorneys are skilled negotiators and innovating in creating the proper terms for the agreement while working together with your spouse or his or her counsel to complete a fair, amicable and easily understood agreement.

Does my fiancé need his or her own attorney?

California law outlines several requirements to have a valid and enforceable prenuptial or premarital agreement.  One of these requirements provides that the spouse against whom enforcement is sought must be represented by his or her own attorney or waive the option to be represented by his or her own attorney.  This means that if you retain an attorney to draft a prenuptial agreement, your fiancé must be represented by his or her own attorney, or waive the option of seeking the advice of his or her own attorney before signing the agreement.  It is generally highly ill-advised to have one spouse represented by counsel for a premarital agreement and have the other spouse sign a waiver of his or her right to counsel.

Do I have to disclose all my finances?

Yes.  Under California law, a premarital agreement is generally unconscionable, and therefore unenforceable, against a spouse who did not receive full and fair disclosure of the other spouse’s property or financial obligations.  If a spouse waives his or her right to this full disclosure, then the waiver must be voluntary.