How Does a Prenup Affect Divorce

Does Your Prenup Hold Up in California? What You Need to Know in a Divorce

Most couples don’t enter prenups with plans to separate. In fact, most prenuptial agreement terms are written to encourage couples to remain together. Even the California court system encourages prenups because they help reduce disputes in the case of a divorce.

But prenups must meet certain requirements to be valid in a divorce. Some types of prenuptial agreements such as those involving custody are never acceptable and might be tossed out by a court. The actual execution of your prenuptial terms might get complicated, fast – in which case, you need a strong advocate to help protect your interests.

If you’re facing a divorce with a prenup in the Bay Area, you should talk to a California family lawyer to understand whether the terms of your agreement hold up.

How do Prenuptial Agreements Work in California?

A prenuptial agreement is a legal contract executed between two spouses before entering into a marriage. Prenups usually cover what will happen to a couple’s assets and debts if they end up divorcing. The California Uniform Premarital Agreement Act (UPAA) sets out the rules for how prenups must be entered into and executed to be valid.

Under the UPAA, your prenup is valid only if it meets all of the following requirements:

  • The prenuptial agreement is a written contract,
  • The terms of the premarital agreement are lawful (not illegal),
  • Both parties have signed the prenup,
  • Both parties have entered into the prenup voluntarily, without outside influence, duress, deceit, coercion, or intimidation of any kind,
  • The prenuptial agreement must be notarized by a licensed notary, and
  • Both parties have 7 days to seek independent legal counsel between being presented with the final agreement and signing the prenup.

If your premarital agreement is missing any of the above requirements, it can be voided by a court. You can also argue your prenup is void if you signed the agreement then later found out your spouse held back key information about their wealth at the time.

In your prenup, you can agree to terms regarding your marital property, including:

  • The right to buy, sell or use certain property
  • How you’ll divide property in the event of death or divorce
  • Ownership rights to benefits from life insurance policies

Some terms cannot be decided in a premarital agreement, and courts will refuse to enforce them in the case of a divorce. Terms that are not enforceable include:

  • Agreements that assign child custody or limit child support payments
  • Agreements requiring children to be raised under a certain religion
  • Waiving financial and property disclosure requirements
  • If a spouse doesn’t get independent legal counsel before signing the prenup, they cannot waive their spousal maintenance or alimony requirements
  • Terms that are against “public policy” or require a spouse to commit illegal acts
  • Deceptive, exploitive, unfair, or unjust terms
  • Terms regarding non-financial spousal behavior, like drug use or cheating
  • Terms that punish spousal misconduct or “fault,” since California is a no-fault state
  • Relationship-related terms, such as agreements to pay compensation for companionship or “domestic services” that are already assumed as marriage duties
  • Terms that encourage divorce, such as one spouse being awarded a large sum of money or a valuable asset purely as a result of the divorce

A court may also refuse to enforce certain premarital terms if the judge determines the result would be “unconscionable” or extremely unfair – for example, if the terms leave one spouse destitute while the other has the means to provide support.

Verbal prenuptial agreements will not be enforced by the courts. Your prenup must be written, signed, and notarized and usually won’t become legally binding until after you marry.

You can also change the terms of a prenuptial agreement during your marriage or even enter into a postnuptial agreement. You and your spouse must both agree to the changes and execute the amendments in a similar fashion as the original terms.

To add another complicating factor, the California UPAA received a substantial update to many of its laws in 2002. If you signed your premarital agreement before 2002, the new rules would not apply to your case. Instead, your prenup would be evaluated under pre-2002 laws.

California Prenup FAQs

While prenuptial agreements help preserve your intentions from the beginning of your marriage, circumstances might have changed since you signed. A California divorce lawyer can help you decipher the legal realities of your premarital agreement in the case of separation.

Do Prenuptial Agreements Expire in California?

If your prenup doesn’t mention an expiration date, then it can be upheld in court indefinitely. Some premarital agreements have a time limit on the length of the contract, called “sunset clauses.” You and your spouse may have agreed that your prenup would be valid for only the first decade or two of your marriage, after which the terms would no longer apply.

Although prenuptial agreements don’t expire in California, you and your spouse can draft and sign an agreement during your marriage to void your prenup.

Can a Premarital Agreement Prevent Alimony in California?

You can waive post-divorce alimony and spousal support requirements in a prenuptial agreement only if you follow strict rules under California law:

  • Both parties must enter the agreement knowingly and voluntarily,
  • Both parties are aware of the agreement’s effects,
  • Both parties are represented by separate independent counsel, and
  • The terms do not violate public policy.

Even if you followed the requirements above, a court may refuse to enforce spousal support waivers if doing so would be “unconscionable.” Your waiver may get tossed out if enforcement would leave one spouse in dire financial straits while the other can afford to support them.

Can a Judge Throw Out a Prenuptial Agreement?

Yes. A California judge can throw out a premarital agreement in several cases, including:

  • When one spouse signs the agreement without proper legal representation
  • When one spouse signs under duress, intimidation, force, or threat of injury
  • If the judge decides the terms are not “fair and reasonable” to one spouse
  • If enforcement would be “unconscionable” to carry out
  • If one spouse failed to disclose or misrepresented their assets
  • If the terms of the agreement violate state law or public policy

The impact of your prenup on your divorce depends on the particular facts of your case, which will be taken into account by California courts.

Can You Void a Premarital Agreement?

Yes. You and your spouse can agree to amend or void your prenuptial agreement at any time before your divorce. Any amendments must be written, signed, notarized, and executed with the same legal requirements as your original prenup, ideally with the help of a lawyer.

The terms of your marital agreement may seem set in stone. But the divorce process introduces legal gray areas where your prenuptial terms might not apply. An expert in prenuptial agreements can help you evaluate where you stand and move forward.