Prenuptial agreements, or premarital agreements, are increasingly common among couples in Beverly Hills and Los Angeles who wish to establish clear financial expectations before marriage. However, drafting a prenuptial agreement that will withstand judicial scrutiny requires strict adherence to California law. At Barsamyan Family Law APC, we guide clients through the intricate requirements to ensure their agreements are valid and enforceable.
Requirements for a Valid Prenuptial Agreement
The enforceability of prenuptial agreements in California is governed by the Uniform Premarital Agreement Act (UPAA), codified in Family Code Section 1610 et seq. For a prenuptial agreement to be valid, it must be in writing and signed by both parties. Furthermore, Family Code Section 1615 stipulates that an agreement is not enforceable if the party against whom enforcement is sought proves that they did not execute the agreement voluntarily, or that the agreement was unconscionable when it was executed.
To establish that the agreement was executed voluntarily under Family Code section 1615(c), several statutory requirements must be met. The party against whom enforcement is sought must have been represented by independent legal counsel at the time of signing the agreement, or, after being advised in writing to seek independent counsel and being given a reasonable opportunity to do so, must have expressly waived such representation in a separate writing.
The Seven-Day Waiting Period
A critical procedural requirement under Family Code Section 1615 is the seven-day waiting period. The party against whom enforcement is sought must have had at least seven calendar days between the time they were first presented with the final agreement and advised to seek independent legal counsel, and the time the agreement was signed. This waiting period is designed to prevent coercion and ensure that both parties have adequate time to review the terms and consult with an attorney.
Full and Fair Disclosure
An agreement may be deemed unconscionable if there was not a full, fair, and reasonable disclosure of the property and financial obligations of the other party. Both parties must provide accurate and comprehensive financial disclosures before signing the agreement. A waiver of this disclosure is only valid if it is made voluntarily and expressly in writing.
Permissible and Impermissible Terms
Prenuptial agreements can cover a wide range of financial matters, including the characterization of property (community vs. separate), the allocation of debt, and the management of assets during the marriage. However, there are strict limitations on what can be included.
Most notably, a prenuptial agreement cannot adversely affect the right of a child to receive child support. Any provision attempting to limit or waive child support obligations is void as against public policy. Additionally, provisions regarding spousal support (alimony) are subject to heightened scrutiny under Family Code section 1612(c). A spousal support waiver or limitation is not enforceable unless (1) the party against whom enforcement is sought was represented by independent counsel at the time the agreement was signed, AND (2) the provision is not unconscionable at the time of enforcement. Both requirements must be met; failure of either renders the spousal support provision unenforceable.
Grounds for Challenging Enforcement
Challenges to the enforcement of a prenuptial agreement typically center on allegations of fraud, duress, lack of capacity, or failure to comply with the statutory requirements, such as the seven-day waiting period or the independent counsel mandate. Ensuring meticulous compliance with these requirements during the drafting and execution phases is essential to protecting the agreement from future challenges.