PREMARITAL / PRENUPTIAL AGREEMENTS

Santa Cruz Divorce and Family Law Attorney

Premarital, or Prenuptial Agreements

In California, premarital, or prenuptial agreements are governed by California’s adoption of the Uniform Premarital Agreement Act (UPAA) and has applied since 1986.  Prospective spouses could agree to just about anything in writing except provisions could not interfere with a court’s ability to control child support, custody, or visitation (which is still the case today).  Such provisions are void as a matter of law.  Of course, general laws that apply to contracts also apply to premarital, or prenuptial agreements.   

In 2002 amendments were made the UPAA that imposed additional requirements before premarital, or prenuptial agreements can be validly entered into by spouses.  In short, premarital, or prenuptial agreements will only be enforced against a spouse if that spouse:

  • Received complete information about the other spouses property and finances before signing the agreement;
  • Had at least seven (7) days between the time of first receiving the agreement and signing it; and
  • And was represented by their own attorney when they signed the agreement, unless the spouse:
    • Received full information in writing about terms and the effects of the premarital, or prenuptial agreement, including rights and obligations that will be abolished, and
    • Signed a separate document acknowledging receipt of such information, identifying the person who provided the information, and expressly waiving the right to an attorney.     

However, if a spouse was not represented by an attorney, even despite all of the above requirements having been met, spousal support provisions against the unrepresented spouse will not be enforced.  Where both spouses are represented by counsel, then premarital, or prenuptial agreements can define rights to spousal support so long as it isn’t “unconscionable.”  Prospective spouses can also define their rights to community and separate property and how earnings and accumulations during marriage will be characterized. 

Despite the freedom to contract about such respective rights, there are certain provisions that premarital, or prenuptial agreements cannot include such as those that would be in conflict with “public policy.”  That can include numerous issues like minimizing the court’s ability to control child support, or custody and visitation or children.  Parties can agree to provide more than a court would require, but not less.  Premarital agreements should not have provisions promotive of divorce either.  Additionally, prospective spouses cannot agree to waive rights in ERISA governed employee benefit plans.  Federal law mandates that only current spouses can do that.  Nor can parties require a court to consider fault in the event of divorce, or agree to alter certain fiduciary and other duties owed in marriage. 

Again, above provides general information not meant to be taken as legal advice.  Only a consultation to assess the particular circumstances of individual cases can provide the basis for such advice.  Contact our office today to schedule an appointment to how the law applies to your case.   

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