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California Prenuptial Agreements

Attorney Michael Spiekerman understands the importance of prenuptial agreements to many people who are contemplating marriage.  Today, more than ever before, Californians are remarrying or marrying for the first time later in life when they already have considerable assets and debts, or children, to consider and plan for.  

While the old view was that a premarital agreement suggested a lack of confidence that a marriage would succeed, today the law recognizes that people are more likely to marry, and that their marriage is actually supported and made more enduring, when they begin with a road-map for addressing property and finances - subjects that we all tend to feel uncomfortable talking about until decisions are made that often cannot be undone.  

Ironically, for those couples that do divorce (including domestic partners who dissolve their RDP) without a prior written understanding of how property might be divided or confirmed, and income and support issues handled, judges and the law treat these individuals as if they knew every legal consequence of every transaction and decision to buy or sell property, how to hold legal title, or what happens when inheritance, earnings, and other monies are mixed together and commingled.  Of course no one actually does, which results in unsettling surprises for many.  

Prenuptial agreements are prudent and mature, and they help to begin marriage and domestic partnerships on a firm footing with each party understanding what many of their rights and obligations are, or how they may be affected or changed, by reason of the otherwise invisible legal consequences that flow from marriage.  This allows for informed decision-making early on. 

Do Premarital Agreements Work?
California marital property law creates a presumption that any property acquired by a married person between the date of marriage and the date of physical separation is community property, subject to certain exceptions. The community is an artificial entity (a legal fiction) created in law by which a husband and wife, or registered domestic partners, each may acquire a one-half interest in property acquired during the marital window.

Prenuptial agreements, also called antenuptial or premarital agreements, are contracts between the parties to modify or circumvent the community property laws of the state.  Thus, the agreement may operate to create a separate interest in property acquired, income earned, and/or debts incurred during marriage that would otherwise be a joint asset or obligation.  The agreement may also serve to identify separate property interests that exist at time of marriage.

Prenuptial agreements, when properly drafted and executed, will be enforced by California courts so long as the required conditions are met. They are not enforceable where:

  • It was not signed voluntarily (which requires more than mere consent)
  • The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
    • That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other 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, or that party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.  

Family Code section 1615 essentially states that an agreement be found to be voluntary, the court must find each of the following: 

  • 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 representation.
  • 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.
  • 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.

Can Spousal Support Be Waived?
The issues of a waiver of child support and spousal support as part of a prenuptial agreement are treated separately in California Family Code §1612.  A waiver of child support is not enforceable.  Simply stated, whether a spousal support waiver will be enforced depends upon whether that party was represented by independent counsel at the time of the waiver.  More importantly, courts will look to whether the agreement was (a) so unfair at the time it was signed as to have been "unconscionable" but also (b) whether the parties' circumstances today are such that it would be unconscionable to enforce the waiver.   

An agreement that seeks to waive or limit spousal support rights must be drafted with particular care to not only ensure that is fair at the time it is designed, but also to anticipate creatively how to increase the likelihood that it seems sufficiently fair years later. A prenuptial agreement is a complex legal document.  Its negotiation and preparation must be left to a competent attorney with experience in drafting them. 

Premarital agreements are complex documents that require specialized expertise.  You must have a trained professional who is thoroughly familiar with them in order to have the expectations set forth in the agreement met. We have that knowledge.  Moreover, only an independent attorney who represents only your interests in the negotiating of the agreement can tell you what really is or is not fair and appropriate, and what the language actually means! 

The information on this website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create an attorney-client relationship, nor does the receipt or viewing of this information constitute an attorney-client relationship.