Do You Need a Lawyer for a Prenup in California?

Posted By admin, Uncategorized On August 30, 2020

About Prenups in California

In the 1980’s prenuptial agreements, also called antenuptial or premarital agreements, became popular in the United States, but it said that the ancient Romans used premarital agreements. A prenup is a contract signed by two people who intend to marry.

The applicable statutes in the Golden State outline the rights and obligations of domestic partners and spouses. Some of these rights can be renegotiated and modified by a contract. Spouses may decide in advance. Terms can even be decided for the eventuality of the untimely death of a spouse. 

The agreed upon terms can diverge from the default provisions under the present state legislation.  If this is something one or both people want to do, then a prenuptial agreement is the option that makes most sense.

Do You Need a Lawyer for a Prenup in California?

As with any contract, it is possible to create a prenuptial agreement by yourself.  If you choose not to get a lawyer for this, there are templates you can follow.  The risk associated with this is that you may overlook pertinent details that make it impossible to later enforce the contract. 

The Validity of a Prenup in California

Although you can create a prenup on your own (at your own peril), getting a prenup in California signed, and later enforced, may require an attorney.  Generally speaking, courts look favorably upon premarital agreements. That said, certain circumstances exist under which a prenup cannot and will not be enforced.  

For example, if any form of coercion at signing can be proven to a judge, the agreement is invalidated.

For the court to determine that a signature was indeed voluntary, the party who was presented with the prenup must have either consulted with their own attorney, or they must have, in writing, withdrawn their right to have an attorney.

Pursuant to California law, the future spouse must be allowed a minimum of seven days to consult a lawyer before signing a prenuptial agreement. If, for instance, a wife has no lawyer representing her at signing, she must be capable of giving a clear and correct explanation as to the contents of the contract to show that she understood what she signed.

How Can I Be Sure if My Prenup is Valid?

For a prenup to be considered valid, the agreement must be in writing and be signed by both parties. The agreement can later be modified or revoked after the couple has already gotten married. Such changes also require a written contract signed by both of the spouses. It is worth noting that because of the unique and intimate kinship between husbands and wives, the mere existence of a prenup can create suspicions of undue influence.

The law says that the intimate, fiduciary link between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” Family courts have the power to penalize any violation of fiduciary obligation. 

Note that there aren’t any fiduciary relationships between fiances. A presumption of undue influence would not apply in this case.

The Scope of Prenups in California

A prenup can deal with issues such as the interests of the future husband and wife in their separate and community property assets. Such interests include the right to sell, lease, buy, or mortgage real property. Even the creation of a will, the formation of a trust, or the payout of a life insurance death benefit can be limited by a prenup. 

Some important limitations to the authority of prenups:

  •  The right of a child to receive support cannot be adversely affected by a prenup
  • A judge will only enforce clauses that limit spousal support if the affected spouse had the chance to get legal representation at the time they signed.
  • If the courts find that a waiver of spousal support unconscionable, they may decide not to enforce it and award support. 
  • If the prenup obligates anyone to commit crimes or otherwise break laws or public policy, it is invalid. 
  • Life-style clauses, such as those dictating frequency of sex, usually cannot be enforced by courts.