How To Get A Prenup In California

Think prenups are only for millionaires or messy divorces? Think again! In California, even couples with modest assets can benefit from a prenup. Here are thirteen things we think you should know about getting a prenup in California

13 things to know about getting a California prenup

A prenuptial agreement (or prenup) is a written contract signed by a couple before marriage to set out their financial plan for their marriage and in the event of a divorce. Every state has its own specific set of rules, statutes, and case law regarding prenups, so you must be careful when it comes to the dos and don’ts for a prenup in your jurisdiction.

1. You can write your own prenup in California

Couples in California can draft their own prenups; however, if not done properly, then the contract can be invalidated. You must waive your right to a lawyer: If you want to write your own prenup without an attorney in CA, you must sign a waiver saying you understand what you are doing and what you are giving up by not being represented by counsel. HelloPrenup’s seamless, clear, and efficient proprietary software allows you to create a draft prenup in California, along with a proper CA attorney waiver form. One caveat: If you modify spousal support in your prenup, you will legally require a lawyer to sign off on your prenup under CA law.

2. Timeline matters

To secure a valid prenup in California, you must follow the 7-day rule.How the rule works: You must have 7 calendar days between the final version of the prenup and the day you sign it. This is to give the spouses enough time to get a lawyer (if they want one) and digest the terms of the agreement.

3. You must meet California’s full list of requirements

That’s not all, folks; there are more requirements to creating a valid prenup in CA. Here are some of the other requirements:

• In writing & signed: The prenup must be in writing and signed by both parties.
• Financial disclosure: Both spouses had full disclosure and full understanding of their spouse’s financial property, assets, and liabilities.
• 7-day rule: The couple had 7 full days to review the final prenuptial agreement before signing it.
• Legal counsel: The spouses either were represented by an attorney or waived their right to an attorney in the prenup properly.
• Spousal support: If spousal support is waived or modified, the party waiving must be represented by an attorney.
• Notarization: Getting your prenup notarized means having a Notary Public watch you sign your document (you can get this done virtually through the HelloPrenup platform).
• Conscionability: Terms of the agreement must NOT be unconscionable, meaning they must not shock the conscience of the court.

Bottom line: In order to have a valid and enforceable agreement, your prenup must meet all of the requirements laid out by California law. From signatures to conscionability, it all matters!

4. The terms of the agreement must be conscionable

In California (and pretty much all states), all prenuptial agreements (and generally, all contracts) must be conscionable. This means that the prenup must not be so unfair as to shock the conscience of the court (i.e., be egregiously unfair). If a prenup is deemed unconscionable, it will likely be ruled unenforceable by a judge. So, what is considered unconscionable in California? Here is an example of an unconscionable CA prenup (In re Marriage of Facter):

• Background: At the time the prenup was signed, the wife was an unemployed high school graduate and single mother of two children. The husband was an accomplished attorney who earned about $500,000 per year. Their prenup had a waiver of spousal support (which means the wife could not ask for financial support from the husband in the event of a divorce).
• At the time of Divorce: The husband had amassed approximately $10 million dollars in assets and earned $1 million dollars per year at the time of divorce. At the same time, the wife remained unemployed and had no separate assets of her own during the marriage.
• The Question: The husband tried to enforce the waiver of spousal support at the time of divorce, and the wife argued it wasn’t fair…Was this waiver of spousal support conscionable?
• The Court’s Ruling: The spousal support waiver was unenforceable because it was unconscionable.
• The Court’s Reasoning: It explained that the waiver of spousal support was unconscionable because of the dramatic disparity in the husband and wife's “respective incomes and assets at the time they entered into the Agreement,” and the court further reasoned that there existed “a significant inequality of bargaining power.”

Takeaway: If something is outrageously unfair in a prenup (i.e., unconscionable), a CA court can throw it out.

5. The agreement must be voluntary

For a prenuptial agreement to remain enforceable, the contract cannot have been signed under duress, coercion, or by a party lacking mental capacity. This is just simple contract law (and common sense!). For example, a court will not enforce the terms of an agreement where one spouse was coerced into signing. Each party must enter the contract voluntarily.

6. All signatures should be notarized

In California, the signatures included on the document should also be notarized. This is easy to do! Getting your agreement notarized means having a Notary Public watch you sign the document (after verifying your identification). It is a way to deter fraud in executing prenups (making sure you are who you say you are and actually signing your agreement). Want to learn more about notarization? HelloPrenup offers virtual notarization directly through our platform for a flat-rate. Get your prenup and notarization completed, all from the comfort of your home!

7. There must be a full disclosure of assets

When entering into a marriage, honesty is always the best policy! And the same applies to drawing up your prenup contract. Before signing the agreement, both parties are obligated to disclose their property, assets, income, and debt. This includes real estate, income, debts, pensions, mortgages, loans, and more. And, no, you cannot skip anything. A prenuptial agreement can be declared unenforceable in California if one or both parties fail to make a full disclosure of finances. [video width="1920" height="1080" mp4="https://helloprenup.com/wp-content/uploads/2021/09/video_final20210930-16450-16w6vqu.mp4"][/video]

8. You need an attorney when you modify spousal support

At baseline, you do not need an attorney for your CA prenup as long as you waive your right to an attorney properly. HOWEVER– you do need a lawyer for your CA prenup if you modify or waive spousal support. Altering the terms of spousal support in your prenup = you need a lawyer to sign your prenup. Leaving spousal support up to a judge to decide for you = you don’t need a lawyer to sign your prenup.

9. What can be included in a prenup in California?

A prenuptial agreement is used to clarify how each spouse’s finances and liabilities will be managed and distributed in the event of a divorce. The prenup can include provisions relating to the following:

• Property division (who gets what)
• Spousal support
• Debt allocation
• Business ownership
• Reimbursement for contributions to property
• Joint bank accounts
• Inheritances
• Gifts
• Tax filing
• Confidentiality
• Pet custody
• Required mediation
• And more.

10. What cannot be included in a prenup in California?

Not everything can, or should be, included in a prenup, and the courts in California are very stringent about this.

• Child support rights
• Child custody arrangements
• Provisions promoting divorce
• Violations of public policy or law
• Unconscionable or frivolous terms
• Infidelity clauses or other lifestyle clauses

11. Can you get a prenup after marriage in California?

No. A prenup must be signed before the wedding takes place. However, all is not lost, you could arrange a postnuptial agreement (postnup). A postnup can provide some level of protection of assets in the event of a divorce but they are often less widely accepted and more frequently contested than a prenup. Therefore, it is always best to think ahead and secure a premarital contract.

12. Does a prenup expire in California?

Do prenups expire in Cali?? No. Unless the prenup states otherwise. There is no automatic expiration date for a prenuptial agreement, making it valid forever. However, some couples choose to add a ‘sunset clause,’ meaning that the prenup will expire on a certain date or wedding anniversary. For example, you can include a sunset clause that says the prenup will expire on your 15th wedding anniversary, meaning that the default laws of your state will apply to your divorce, not your prenup.

13. How much does it cost to get a prenup in California?

In California, the cost of your prenuptial agreement can depend on how easy or complex your situation is, how long the negotiations take, and how intricate your agreement needs to be. $8,000 is the average prenup cost in the U.S., according to a HelloPrenup survey of attorneys. However, a prenup with HelloPrenup costs only $599 per couple and can be completed in as little as a few hours. Co-create your future & protect your ass(ets) with a prenup today!