Quick Answer A prenuptial agreement, also called a prenup or premarital agreement, is a written contract entered into by two people before marriage that defines how their assets and obligations will be handled during the marriage and in the event of divorce or death. Prenups typically address property division, debt allocation, spousal support, and inheritance rights. California governs prenuptial agreements through the Uniform Premarital Agreement Act, codified at California Family Code sections 1610 through 1617. Strict requirements for enforceability include full financial disclosure, independent legal counsel for both parties, a 7 day waiting period before signing, and execution without duress. A prenup cannot waive child support obligations. The cost of a properly drafted prenup ranges from $1,500 to $10,000 depending on complexity.
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The Purpose of a Prenuptial Agreement
A prenuptial agreement is a written contract entered into by two people before they marry. The contract defines how their financial affairs will be handled during the marriage and what will happen if the marriage ends in divorce or by the death of one spouse.
Without a prenuptial agreement, the default rules of California family law apply. These default rules include community property division of assets acquired during marriage, spousal support based on the 14 factors in California Family Code section 4320, and various other statutory protections. A prenup allows the parties to customize these default rules to suit their specific needs and preferences.
Prenups are often misunderstood as planning for divorce. In reality, they are similar to other forms of contractual planning that establish clear rules in advance. Just as business partners might have partnership agreements, married couples might have prenuptial agreements.
Who Should Consider a Prenup
Prenuptial agreements are particularly beneficial in certain situations:
- One or both parties have significant pre marriage assets they want to protect
- One or both parties have significant pre marriage debts they want to keep separate
- One party owns a business they want to keep separate
- One party expects to receive a substantial inheritance
- There is a significant income disparity between the parties
- One party has children from a previous relationship and wants to preserve inheritance for them
- Either party has been through a difficult prior divorce and wants to avoid similar issues
- Either party has been previously married and divorced
- Either party has personal or family wealth they want to protect
- The parties want to define their financial relationship clearly
What a Prenup Can Cover
California Family Code section 1612 sets out the broad scope of issues a prenuptial agreement can address:
- Rights and obligations of each party regarding property
- The right to buy, sell, use, transfer, exchange, manage, or control property
- The disposition of property upon separation, dissolution, death, or other event
- Modification or elimination of spousal support (subject to specific limits)
- The making of wills, trusts, or other arrangements
- The ownership rights in and disposition of death benefits from a life insurance policy
- The choice of law governing the construction of the agreement
- Any other matter not in violation of public policy or criminal statute
What a Prenup Cannot Cover
California law specifically prohibits prenuptial agreements from covering certain matters:
Child Support and Custody
Prenuptial agreements cannot waive or limit child support obligations or determine child custody. These matters are reserved for the court to decide in the best interest of the child at the time of any dispute. Any provision attempting to address these matters is unenforceable. The court evaluates child support based on guideline formulas at the time of dissolution, not based on what the parents agreed to before any children were born.
Spousal Support Waivers in Specific Circumstances
California Family Code section 1612(c) limits the ability to waive spousal support. A waiver of spousal support is enforceable only if the party against whom enforcement is sought was represented by independent legal counsel at the time the agreement was signed, and the waiver is not unconscionable at the time of enforcement.
Public Policy Violations
Provisions that violate public policy are unenforceable. Examples include:
- Requiring sexual behavior or conduct
- Limiting one party’s religious practice
- Requiring a party to commit a crime
- Provisions that incentivize divorce
- Provisions that violate civil rights
Requirements for Enforceability in California
California has strict requirements for prenuptial agreements to be enforceable. These requirements protect against unfair agreements imposed by economic pressure or lack of information. A board-certified family law specialist can help ensure your agreement meets all requirements.
California Family Code section 1615 sets the enforceability requirements:
- The agreement must be in writing and signed by both parties
- Each party must provide full disclosure of property and financial obligations
- Each party must voluntarily sign the agreement
- The agreement must not be unconscionable at the time of enforcement
- Both parties must have at least 7 calendar days between first receiving the final agreement and signing it
- A party waiving spousal support must have independent legal counsel
Full Financial Disclosure
California Family Code section 1615(a)(2) requires that each party provide a fair, reasonable, and full disclosure of property and financial obligations before signing. Without full disclosure, the agreement is presumed not to be entered into voluntarily.
What Must Be Disclosed
- All real estate owned
- All bank accounts and investment accounts
- All business interests
- All vehicles and personal property of significant value
- All debts including mortgages, credit cards, student loans, and other obligations
- Annual income from all sources
- Tax returns for the past few years
- Retirement account balances
- Expected inheritances of significant value
Disclosure is typically accomplished by attaching detailed financial statements and supporting documentation to the agreement. Some prenups also include warranties that the disclosed information is accurate and complete.
Independent Legal Counsel
California Family Code section 1615(c) requires that a party who waives spousal support be represented by independent legal counsel. Even when spousal support is not waived, having independent counsel for both parties significantly strengthens the agreement’s enforceability.
Why Independent Counsel Matters
Independent counsel ensures that both parties understand the terms and consequences of the agreement. The lawyer who drafts the agreement cannot represent both parties; that would be a conflict of interest. Each party should have their own lawyer review the agreement and explain its implications. Independent counsel prevents later claims that one party did not understand what they signed.
Cost of Independent Counsel
Each party’s independent lawyer typically charges $1,500 to $5,000 for prenup review and counseling. This is in addition to the cost of drafting the agreement itself. The total cost of a properly executed prenup with independent counsel for both parties typically ranges from $3,000 to $10,000.
The 7 Day Waiting Period
California Family Code section 1615(c)(2) requires that both parties have at least 7 calendar days between first receiving the final agreement in writing and signing it. This requirement prevents last minute prenups signed under pressure shortly before the wedding.
The 7 days run from the first delivery of the final agreement, not from the first version or any draft. Any changes made during the 7 days may restart the clock for the changed provisions. Best practice is to finalize the agreement well in advance to comfortably meet the 7 day requirement.
Voluntary Execution Standard
California Family Code section 1615(c) defines what voluntary execution requires. The agreement is voluntary only if all of the following apply:
- The party was represented by independent legal counsel at the time of signing, or expressly waived representation by independent counsel after being advised in writing to seek it
- The party had at least 7 calendar days between first receiving the agreement and signing it
- If the party was unrepresented, they were fully informed in writing of the terms and basic effect of the agreement in the language they spoke and read
- The agreement and writings explaining it were not executed under duress, fraud, or undue influence
- The party did not lack capacity to enter into the agreement
The In re Marriage of Bonds Case
In re Marriage of Bonds (2000) 24 Cal.4th 1 is the landmark California case on prenuptial agreement enforceability. The case involved baseball player Barry Bonds and his ex wife Sun Bonds, who signed a prenup the day before their wedding without legal representation for Sun.
The California Supreme Court upheld the agreement, finding that Sun voluntarily signed it despite the lack of representation and the proximity to the wedding. The case was controversial and led to legislative reforms. California Family Code section 1615 was amended in response to add stricter requirements including the 7 day waiting period and the independent counsel requirement for spousal support waivers.
Today, agreements signed under the circumstances of In re Marriage of Bonds would likely fail under the modern statutory framework. The case remains important historically and as a reminder of why the current strict requirements exist.
Common Prenup Provisions
Typical provisions in California prenuptial agreements include:
Property Provisions
- Identification of each party’s separate property at the time of marriage
- Confirmation that pre marriage property remains separate
- Treatment of appreciation of separate property during marriage
- Treatment of income earned by each party during marriage
- How specific assets like the family home will be characterized
Debt Provisions
- Each party retains responsibility for pre marriage debts
- How debts incurred during marriage will be allocated
- Joint liability for specific shared debts
Spousal Support Provisions
- Waiver, limitation, or specification of spousal support amount
- Duration of spousal support
- Conditions that would end spousal support
Inheritance Provisions
- Protection of inheritance rights for children of prior relationships
- Coordination with estate planning documents
- Treatment of inheritances received during marriage
Cost of a Prenuptial Agreement
Prenuptial agreement costs vary based on complexity and the parties’ financial circumstances:
- Simple prenup with limited assets: $1,500 to $3,500
- Standard prenup with moderate complexity: $3,500 to $7,500
- Complex prenup with significant assets, businesses, or trusts: $7,500 to $20,000
- Very high net worth or international elements: $20,000 to $50,000 or more
These figures include independent counsel for both parties. The drafting attorney typically bills hourly or by flat fee. Independent review counsel for each party typically charges $1,500 to $5,000.
Prenup vs Postnuptial Agreement
A postnuptial agreement is similar to a prenuptial agreement but signed after marriage. Postnuptial agreements are valid in California but face higher scrutiny because once married, the spouses owe each other a fiduciary duty under California Family Code section 721. Any agreement that disadvantages one spouse must comply with this duty.
Common reasons for postnuptial agreements include changes in financial circumstances, the desire to formalize an arrangement that was informal during the early marriage, reconciliation after a separation, or to address issues that were not handled in a prenup.
Frequently Asked Questions
Q: Is a prenuptial agreement enforceable in California?
A: Yes, when properly executed. California enforces prenuptial agreements under the Uniform Premarital Agreement Act codified at California Family Code sections 1610 through 1617. Strict requirements must be met: written agreement signed by both parties, full financial disclosure, voluntary execution without duress, at least 7 days between receiving the agreement and signing, and independent legal counsel for any party waiving spousal support. Agreements not meeting all requirements are not enforceable.
Q: What happens if you don’t have a prenup?
A: Without a prenup, the default rules of California family law apply. Community property law divides assets acquired during marriage equally between the spouses. Separate property (assets owned before marriage and gifts or inheritances received during marriage) remains with the original owner. Spousal support is determined based on the 14 factors in California Family Code section 4320. Without a prenup, you give up the ability to customize these default rules in advance.
Q: Can a prenup be invalidated?
A: Yes, in certain circumstances. A prenup can be invalidated if it was not in writing or properly signed, if there was inadequate financial disclosure, if it was signed under duress or undue influence, if the 7 day waiting period was not met, if independent counsel requirements were violated, if the spousal support waiver was unconscionable at enforcement, or if the agreement violates public policy. Courts scrutinize prenups carefully and will invalidate them when requirements are not strictly met.
Q: Do both parties need lawyers for a prenup?
A: Independent counsel for both parties is strongly recommended and is required when one party waives spousal support. While the law allows a party to be unrepresented if they expressly waive representation in writing, agreements without dual representation are much more vulnerable to challenge. The cost of independent counsel is far less than the cost of an invalidated agreement. Both parties should have their own lawyer review the agreement before signing.
Q: How long before the wedding should a prenup be signed?
A: At minimum 7 calendar days before signing is required between first receiving the final agreement and signing. As a practical matter, prenups should be finalized at least 30 to 60 days before the wedding. Last minute prenups signed under wedding pressure are more vulnerable to challenge. They also create stress during what should be a happy time. Best practice is to begin discussing and drafting a prenup at least 3 to 6 months before the wedding.
Q: Can a prenup determine child custody or support?
A: No. California law prohibits prenuptial agreements from determining child custody or child support. These matters are reserved for the court to decide in the best interest of the child at the time of any dispute. Child support is calculated based on guideline formulas under California Family Code section 4055 at the time of dissolution, not based on what the parents agreed to before the children were born. Any prenup provision attempting to limit child support is unenforceable.
Q: Can I get a prenup after we are already married?
A: Yes, but it would be a postnuptial agreement rather than a prenup. Postnuptial agreements are valid in California but face higher scrutiny because spouses owe each other a fiduciary duty under California Family Code section 721. The agreement must not unfairly disadvantage one spouse. Postnups can be useful when circumstances change during marriage, after reconciliation following a separation, or to address issues that were not addressed before marriage.
Q: How much does a prenuptial agreement cost?
A: Costs vary based on complexity. Simple prenups with limited assets cost $1,500 to $3,500. Standard prenups cost $3,500 to $7,500. Complex prenups with significant assets, businesses, or trusts cost $7,500 to $20,000 or more. These figures typically include independent counsel for both parties. The cost is small compared to the potential financial protection and is far less than the cost of contested property litigation in a future divorce.
Bottom Line
A prenuptial agreement is a powerful tool to customize how your finances will be handled during marriage and in the event of divorce or death. California enforces prenups under the Uniform Premarital Agreement Act in California Family Code sections 1610 through 1617, with strict requirements including written form, full financial disclosure, voluntary execution, a 7 day waiting period, and independent counsel for spousal support waivers. A prenup cannot affect child support or custody. The cost of a properly drafted prenup ranges from $1,500 to $20,000 depending on complexity, far less than the cost of contested litigation later.
If you are considering a prenuptial agreement, plan ahead and consult with a board-certified family law specialist several months before the wedding. A properly drafted prenup is a valuable form of financial planning that protects both spouses.
About the Author
Donald Glen Haslam, Esq. is a Board-Certified Family Law Specialist by the California State Bar Board of Legal Specialization and a senior partner at Haslam & Thorne, LLP in Ontario, California. He has practiced family law exclusively for over 40 years, representing families throughout San Bernardino County and the Inland Empire. Reviewed by Brian George Thorne, Esq., Board-Certified Family Law Specialist.
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Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Prenuptial agreement law has strict requirements that vary by state. For advice specific to your situation, consult with a licensed family law attorney. Reading this article does not create an attorney-client relationship with Haslam & Thorne, LLP.