What is a Premarital Agreement?


A Premarital Agreement, sometimes called a Prenuptial Agreement, is a set of rules created by an engaged couple to govern their financial lives during their marriage and to determine what will happen in terms of property division and spousal support if they should divorce.  They believe that they can create their own rules to fit their unique situation, rules that will be preferable to those imposed by California Family Law.

Legal Requirements

The enforceability of a Premarital Agreement (and sometimes by analogy a Postmarital Agreement) is governed by California Family Law section 1600 et. seq. (Uniform Premarital Agreement Act). The rationale behind the legal requirements rendering a Premarital Agreement valid and enforceable is to ensure that no one is rushed, that signing is voluntary, and that both parties “know what they are doing.”

The statute provides that a substantively “final” draft needs to be in both parties’ hands for at least seven days before they sign it. Theoretically, then, the couple could get the draft on a Friday, and sign it on their wedding day if it is one week later. Recent case law even suggests that if both parties have attorneys, this rule may not be so important. This, though, does not really cure the appearance of a “rush” or an “involuntary signing” and in fact suggests the opposite (that it is rushed and coerced). Therefore, most attorneys prefer to have a seven-day cushion on both sides of the signing: they try to get the draft to the parties at least seven days (preferably more) before the couple signs it, which signing is at least seven days (preferably more) before the wedding.

When making rules about spousal support that differ from existing Family Law, the statute seems to require that each party have an attorney in order to satisfy the “I know what I’m doing” principle. Whether or not there are new rules about spousal support in the Agreement, when each party has his or her own attorney in the process who signs off on the Agreement, it is presumed that they both “know what they are doing.” Choosing not to have your own attorney, then, can be risky, in any case.

Why Have a Premarital Agreement?

There are many important and legitimate reasons why some couples choose to enter into Premarital Agreements. One of the spouses may be part of a family business, which needs to stay uncomplicated and separately owned and managed. The couple may be moving into a home owned by one of the spouses, who wishes to protect his or her separate interest in the property. One of the spouses may have gone through an extremely prolonged, costly and painful divorce, and wishes to create clear “divorce rules” to avoid a potential repeat of this difficult experience. Some couples simply want to plan carefully for their financial future, and wish to have their own set of rules that suit them better than those imposed by existing Family Law statutes. Some couples are very happy with California Family Law, but may contemplate moving to another state and wish to adopt California rules as their own, regardless of where they reside.