What Is a Prenup? 

A prenuptial agreement, often called a prenup, is a legal contract entered into by two individuals before they marry. It sets the terms for managing assets, debts, and other financial matters both during the marriage and in the event of divorce or death. While the idea may seem unromantic, a prenup is a practical tool that offers clarity and protection for couples embarking on their marital journey.

In California, prenups are governed by the Uniform Premarital Agreement Act (UPAA), which is part of the California Family Code. This legislation ensures fairness and legal compliance for these agreements.

Prenuptial agreements have become an essential topic for couples planning their futures. While once viewed skeptically, they are now recognized as a practical tool for financial clarity and protection. 

What is a prenup For?

Marriage is not just an emotional bond; it is also a legal partnership. Prenups exist to provide clarity and prevent potential conflicts. They protect individual assets, set financial boundaries, and establish plans for unforeseen circumstances. 

A prenuptial agreement serves several key purposes. For individuals entering a marriage with pre-owned property, investments, or other assets, it provides a means to keep these assets separate, ensuring they are not subject to division later. It also offers clarity regarding debt responsibilities, designating who is accountable for pre-existing obligations or debts incurred during the marriage. Additionally, for those with children from previous relationships, a prenup can safeguard specific assets to ensure they are preserved for their heirs.

By outlining the division of assets and financial responsibilities upfront, a prenup minimizes disagreements during a divorce.

What Does a Prenup Do?

A prenuptial agreement serves as a roadmap for managing finances and assets. Here are its primary functions:

• Defining Property Rights: It distinguishes between separate property (owned before marriage) and community property (acquired during marriage).
• Allocating Debts: It specifies who will handle debts brought into or incurred during the marriage.
• Determining Spousal Support: Prenups can limit or waive spousal support, provided the terms are fair and do not create financial hardship.
• Protecting Businesses: It ensures that a business owned by one spouse remains separate and unaffected by marital claims.
• Providing for Children: It safeguards assets intended for children from previous relationships.
• Managing Finances: It details how financial matters like joint accounts or savings plans will be handled during the marriage.

What it Cannot Do

While comprehensive, A prenuptial agreement in California has specific legal limits and cannot dictate terms in certain areas. For example, it cannot address child custody or support, as courts prioritize the child’s best interests. It also cannot include anything illegal or that restricts fundamental rights such as work, education, or travel.

It’s important to remember that courts retain jurisdiction over marital disputes. Therefore, the enforceability of a prenuptial agreement is heavily influenced by fairness, transparency, and compliance with California laws. Provisions that violate these principles are likely to be deemed invalid, even if both parties agreed to them initially.

How Does a Prenup Work?

The process begins with both parties identifying their goals and working with attorneys to create the agreement. Both parties provide a detailed account of assets, debts, and anticipated inheritances. Negotiations address property classification, spousal support, debt management, business interests, and protections for children from prior relationships, ensuring the agreement reflects shared priorities.

The Terms

A prenuptial agreement’s terms define its purpose and are tailored to each couple’s needs. Key elements often include property designation, specifying which assets are separate or shared, and debt allocation, clarifying responsibility for pre-existing and marital debts. Spousal support terms can be set or waived, provided they remain fair and equitable. Business ownership provisions safeguard business assets and profits, while financial responsibilities may outline the use of joint or separate accounts and approaches to managing expenses. Estate planning provisions further ensure assets are preserved for children from prior relationships, working alongside tools like wills and trusts for clarity.

Validity

In California, a prenuptial agreement must meet strict legal standards to be valid and enforceable. Both parties must sign the agreement voluntarily, free from coercion or pressure, with a mandatory 7-day waiting period between receiving the document and signing it. Complete transparency is required, with each party fully disclosing their assets and debts; any concealment could invalidate the agreement. While independent legal counsel is strongly advised for both parties, those who choose not to have representation must sign a waiver acknowledging this decision. Lastly, the agreement must be fair, avoiding terms that are overly one-sided or cause undue financial hardship, particularly concerning spousal support.

Execution and Storage

Once both parties have agreed on the terms of the prenuptial agreement, it is signed by both individuals, usually in the presence of a notary to ensure its authenticity. The original document should then be stored in a secure location, such as a safety deposit box or with a trusted attorney, to safeguard its integrity and accessibility when needed.

How Long Does a Prenup Last?

Prenuptial agreements usually remain in effect for the duration of the marriage. However, some include a “sunset clause,” which sets an expiration date or specifies conditions under which the agreement will no longer apply. For instance, a couple might agree that the prenup will expire after ten years or upon the birth of a child.

Without a sunset clause, the prenup continues to govern financial matters unless revoked or amended.

Can You Change a Prenup?

Yes, prenuptial agreements can be modified or revoked after marriage. Any changes must be made in writing and signed by both parties. The revised agreement must also meet the same requirements of fairness, voluntariness, and full disclosure as the original.

Couples often revisit their prenup to reflect changes in their financial situation, such as the acquisition of significant assets or the growth of a business.

Can you see if a prenup was filed in California?

Prenuptial agreements are private contracts. They are not filed with the court unless brought up during legal proceedings like divorce. This confidentiality allows couples to protect their financial details from public scrutiny.

How to Get a Prenup in California

If you are considering a prenuptial agreement in California, here’s how to proceed:

1. Hire Attorneys: Each party should have their own lawyer to ensure fairness and avoid conflicts of interest.
2. Draft the Agreement: Outline the financial terms, ensuring thoroughness and honesty in disclosing assets.
3. Allow Time for Review: California law requires a waiting period to ensure both parties have time to consider the terms.
4. Sign the Agreement: Both parties must sign the document willingly and without pressure.
5. Store Safely: Keep the signed agreement in a secure, accessible location.

By following these steps, couples can ensure their agreement is valid and enforceable under California law.

Final Thoughts

Prenuptial agreements are powerful tools for establishing financial security and avoiding conflict. They offer a practical way for couples to start their marriage with transparency and trust. While some may perceive a prenup as unromantic, it is, in reality, a proactive step toward protecting both partners’ interests.

By understanding what a prenup entails and following the necessary steps, couples can create agreements that reflect their unique circumstances and priorities. A thoughtfully prepared prenup ensures that love and trust, rather than financial worries, remain at the heart of the relationship.