Having a Prenuptial Agreement may, in fact, actually strengthen a couple’s relationship. The process of drafting a California Prenuptial Agreement requires that both parties fully disclose their financial situation and requires each party to openly and honestly discuss how the couple will handle their money and plan for their future. Prenuptial agreements actually better prepare couples for marriage by forcing them to discuss certain important financial issues such as how money is to be earned and how it is to be spent.
An adequately prepared and executed premarital agreement provides both parties with some measure of certainty as to how property and debts will be divided if their marriage is unsuccessful. It can also ensure that your spouse never acquires a community property interest in your separate property.
What a Prenup or Postnup cannot do
A California Prenuptial Agreement cannot control child custody or child support. A prenuptial agreement cannot control a person’s behavior and they cannot punish a spouse for being unfaithful. These types of agreements also cannot regulate the practice of religion.
There are strict requirements for the drafting and execution of your California prenuptial agreement. A premarital agreement must be in writing and voluntarily signed by both parties. For execution to be voluntary, the party waiving rights under the agreement must have been represented by or have explicitly waived independent counsel, have had at least seven days to look the agreement over before signing, and have not been subjected to any duress, fraud or undue influence before execution. The statute also allows the court to look at any other factors it deems relevant in analyzing whether the agreement was executed voluntarily.
The law also provides for opportunity of reasonable and full disclosure of property and financial obligations of the parties, before execution.
Waiver of Spousal Support: Any provision in a premarital agreement which provides for spousal support to be waived is not enforceable if the party who is waiving the support did not receive independent advice by an attorney. This advice or counsel must be prior to or at the time the agreement is signed. If the parties are considering waiving spousal support, they will need to get the advice of an attorney. Prenuptial agreements which do not include a provision for the waiver of spousal support can be signed without have attorney representation or counsel.