Prenuptial Agreements: Overriding California Law?

Prenuptial agreements, commonly known as prenups, are a legally complex document that can provide financial security and reduce conflict and stress in the event of a divorce. While prenups can be created by the parties themselves, it is not recommended as they may not follow the proper state and local laws, and may not hold up in court. Prenups in California must be carefully structured to comply with state law and cannot negatively affect a child's right to child support or take away a court's power to control child custody and visitation after marriage. Certain rights, such as the right to share in an ERISA-governed employee benefit plan, also cannot be waived in a prenup due to federal law. To ensure compliance with the law and to protect the rights and interests of both parties, it is advisable to seek legal advice from a reliable lawyer or prenup attorney.

Spousal support waivers

In California, individuals entering into a marriage have the right to waive spousal support in a prenuptial agreement. This is allowed under the state's specific law, Cal Fam Code §1612. However, it is important to note that the terms of the agreement cannot be unconscionable, or the agreement may not be enforceable.

When drafting a prenuptial agreement in California, it is crucial to clearly outline any spousal support waivers to ensure both parties understand their rights and obligations. California law requires both spouses intending to enter into a prenuptial agreement to seek independent counsel, especially if spousal support provisions are included. This requirement ensures that both parties fully comprehend their rights and are not subject to undue influence or coercion.

While it is possible to include spousal support waivers in a prenuptial agreement in California, it is important to carefully consider all options and seek legal advice. The California divorce case of Peter and Debra Last illustrates why attorneys are hesitant to include such waivers. Despite Debra waiving her right to spousal support in their prenuptial agreement, she was granted temporary spousal support due to the significant disparity in the parties' incomes.

In conclusion, while spousal support waivers can be included in a prenuptial agreement in California, it is important to carefully consider all options and seek legal advice to ensure the agreement is fair and enforceable.

Independent legal counsel

In California, it is highly recommended that both parties to a prenuptial agreement seek independent legal counsel to ensure that their rights and interests are adequately protected. In fact, California law requires that both parties who wish to enter into a prenuptial agreement seek independent counsel before agreeing, but only if spousal support provisions are included in the prenuptial agreement. This requirement ensures that both parties fully understand their rights and obligations under the agreement and are not subject to undue influence or coercion.

The failure to obtain independent counsel can result in the agreement being challenged or invalidated in court. Additionally, the final form of the document must be in the hands of each party at least seven days before signing to ensure that both parties have adequate time to review and consider the terms of the agreement. This waiting period ensures thoughtful consideration and prevents undue pressure or coercion.

It is important to note that certain rights cannot be bargained away in a prenuptial agreement due to other legal requirements. For example, a future spouse cannot waive the right to share in an ERISA-governed employee benefit plan because federal law states that only a current spouse can do so. Similarly, an agreement cannot include anything that is illegal or against "public policy." For instance, children's rights must remain under the control of courts that will act in the "best interests of the child."

To create a valid prenuptial agreement in California, it must be in writing and follow all the requirements of a valid prenuptial agreement. This includes full disclosure of the financial situation by both parties and voluntary agreement to the contract's terms. The agreement must also be carefully structured to ensure it complies with state law and is not deemed unconscionable, providing a stronger likelihood that its provisions will be upheld.

Child support and custody

In California, a prenuptial agreement cannot limit or override a child's right to child support or take away a court's power to control child custody and visitation after marriage. This is because children's rights remain under the control of courts, which will act according to the "best interests of the child".

Prenuptial agreements in California can, however, provide a child with more support than the law requires. For example, they can agree on how to divide responsibility for a child's future college expenses or whether to provide other support for an adult child.

Additionally, agreements between parents about how to raise their children will not generally be binding. For example, a court probably wouldn't enforce a premarital agreement to raise children in a certain religion in the event of a divorce.

It is important to note that a prenuptial agreement in California must be carefully structured to comply with state law and cannot be deemed unconscionable. Both parties must seek independent legal counsel to ensure their rights and interests are protected, and both parties must fully understand their rights and obligations under the agreement.

Furthermore, a prenuptial agreement in California must be signed by both parties of their own free will, without any threats, use of force, or coercive tactics. The final form of the document must be provided to each party at least seven days before signing to ensure adequate review time.

Division of property

A prenuptial agreement, commonly known as a prenup, is a contract drawn up between two people before they marry or enter into a civil union. It allows couples to define and protect their separate property before marriage.

In California, prenups are governed by the California Uniform Prenuptial Agreement Act (CUPAA). This law dictates how a valid prenuptial agreement must be formed and what subject matter can and cannot be addressed in the contract. Under the CUPAA, a prenup may address many aspects of the marital estate, including the division of property upon divorce or death.

Prenuptial agreements can be used to outline how marital debts, such as mortgages or loans, will be divided in the event of a divorce. They can also protect spouses from each other's pre-existing debts, ensuring that creditors cannot go after marital property to satisfy individual debts.

In California, without a prenuptial agreement, courts will divide property according to community property laws if a couple divorces. "Community property" refers to all property accumulated during the marriage, minus each spouse's "separate property." California community property law emphasizes equality, so the court will generally divide the marital estate equally (50/50).

It is important to note that certain rights cannot be bargained away in a prenuptial agreement due to other legal requirements. For example, a future spouse cannot waive their right to share in an ERISA-governed employee benefit plan because federal law states that only a current spouse can do so. Additionally, a prenuptial agreement cannot include anything that is illegal or against "public policy." For instance, an agreement that promotes divorce or includes non-financial requirements, such as demanding a spouse become a stay-at-home parent, would be unenforceable.

Prenup validity

Prenuptial agreements are legal contracts entered into by two individuals before they marry. In California, prenuptial agreements are recognised under the Uniform Premarital Agreement Act (UPAA). This law states that written prenuptial agreements signed by both parties, in contemplation of marriage, will automatically become effective once the couple marries.

To be valid, a prenuptial agreement must be in writing and signed in the presence of a notary and witnesses. Each party must receive the final form of the document at least seven days before signing to ensure they have adequate time to review and consider the terms. Both parties must also seek independent legal counsel to ensure their rights and interests are protected. This requirement ensures that both parties fully understand their rights and obligations under the agreement and are not subject to undue influence or coercion.

Certain rights cannot be bargained away in a prenuptial agreement due to legal requirements. For example, a future spouse cannot waive the right to share in an ERISA-governed employee benefit plan, as federal law states only a current spouse can do so. The agreement also cannot include anything deemed illegal or against "public policy". For instance, children's rights must remain under the control of the courts, which will act in the best interests of the child.

Additionally, prenuptial agreements in California cannot contain clauses related to infidelity or "cheating", as California is a no-fault divorce state. This means that neither party has to prove any wrongdoing to obtain a divorce, and spousal misconduct will not be considered in the division of property or award of spousal support.

Finally, prenuptial agreements must not be unconscionable, meaning the provisions laid out in the document must not be excessively skewed in favour of one spouse to the point of creating an unjust situation for the other party. If an agreement is found to be unconscionable, it may be deemed invalid and unenforceable by a court of law.

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