Nuptial Agreement Attorney

Prenuptial and Postnuptial Agreements

Couples marrying later in life, or those with a significant disparity in age or wealth, frequently choose to enter into a prenuptial agreement to safeguard individual assets, clarify how property acquired during the marriage will be treated, and establish terms such as spousal support in the event of a divorce. Anyone contemplating a prenuptial agreement should have a qualified family law attorney review or draft the document, since a poorly constructed agreement risks being thrown out later. California law presumes a prenuptial agreement is valid unless a party successfully challenges it in court.

Requirements

California's prenuptial agreements are governed by the Uniform Premarital Agreement Act, codified at Family Code sections 1600 and following. A valid prenuptial agreement addresses financial matters only — it cannot dictate child support, custody, visitation, or issues of marital fault — and must be signed by both parties before the wedding, taking effect on the date of marriage. No exchange of consideration is required for the agreement to be binding. Once married, spouses may modify or revoke the agreement through a signed written document.

Validity Criteria

For a prenuptial agreement to hold up, it generally must satisfy the following:

  • Both parties entered into it voluntarily.
  • The terms are not unconscionable, a determination reserved for the court.
  • Each spouse fully and fairly disclosed their property and financial obligations, unless that disclosure was knowingly waived in writing.
  • Both spouses had adequate knowledge of one another's assets and liabilities.
  • The party who did not draft the agreement either had it reviewed by independent counsel before signing, or knowingly waived that right in a separate written statement.
  • The non-drafting spouse was given at least seven calendar days between first receiving the agreement and being advised to consult independent counsel, and the date of signing.
  • If the non-drafting spouse chose not to retain independent counsel, they were fully informed — in writing and in a language they understand — of the agreement's terms and of the rights they were giving up, and they signed a separate acknowledgment confirming they received this information before signing the agreement itself.
  • The agreement was signed without duress, fraud, or undue influence, and both parties had the legal capacity to contract.

Terms of a Prenup

Spousal Support

Spouses may waive spousal support altogether, though courts will decline to enforce that waiver if doing so would produce an unconscionable result. A waiver is more likely to be upheld when both spouses have comparable education, career standing, and financial resources; where that balance doesn't exist, the spousal support provisions warrant closer scrutiny.

Property Characterization

Couples can also designate how property will be classified going forward — for instance, agreeing that income earned during the marriage, which California law would otherwise treat as community property, remains the separate property of the earning spouse.

Estate Planning Provisions

In addition, prenuptial agreements may incorporate certain estate planning provisions, including terms in a will or trust, as long as they don't interfere with the rights of minor children. Spouses may also waive inheritance rights through the agreement.

Inappropriate Terms of a Prenup

Child-Related Provisions

Certain provisions fall outside what a prenuptial agreement can legally accomplish:

  • Child support waivers — Not enforceable, as they conflict with public policy.

  • Custody determinations — Courts retain sole authority to decide custody based on the child's best interests, regardless of what the agreement states.

  • Parenting terms — Provisions governing how children will be raised are similarly unenforceable.

Other Unenforceable Terms

  • Basic marital obligations — Terms attempting to regulate household duties or companionship will not be upheld.

  • Infidelity clauses — Carry no legal weight, since California is a no-fault divorce state.

  • Disclosure waivers — Parties cannot waive their right to financial disclosure if the marriage later ends in divorce.

  • Divorce-inducing terms — Any provision that appears designed to incentivize divorce will draw close judicial scrutiny, as such terms conflict with public policy.

Meeting with documents and hands, writing notes.

Post-Nuptial Agreement Lawyer in Long Beach and Santa Monica, CA

Married couples often turn to a postnuptial agreement when there wasn't sufficient time to finalize a prenuptial agreement before the wedding, when they need to resolve disputes involving finances, inheritance, or a family business, or when a new concern — such as a spending problem or an addiction — surfaces after the marriage has begun. Because these agreements are signed after the marriage, courts start from the presumption that they are invalid, making careful drafting and execution essential to overcoming that presumption.

Requirements

To be enforceable, a postnuptial agreement must be in writing, notarized by both spouses, and free from duress, fraud, or undue influence. The terms cannot be unconscionable, and both spouses must fully disclose their financial assets and obligations before signing.

Enforceable Terms

Postnuptial agreements may properly address:

  • Spousal support, whether a specific amount or a full waiver.

  • How assets will be characterized and divided.

  • Allocation of debts.

  • Custody arrangements for family pets.

Unenforceable Terms

Certain matters remain beyond the reach of a postnuptial agreement, including:

  • Waivers of child support.

  • Determinations of child custody.

Considerations Before Signing

  • Seek independent counsel — If one spouse proposes a postnuptial agreement, the other should promptly consult independent legal counsel.

  • Know the 50-50 baseline — California's community property laws call for an equal division of assets acquired during the marriage and before separation, so an agreement awarding one spouse significantly less than half of the marital estate may not serve that spouse's interests.

  • Negotiate and draft carefully — Careful negotiation and drafting are essential to avoid an unfavorable outcome.

  • Avoid leaving a spouse with nothing — Courts will refuse to enforce an agreement, in whole or in part, that leaves one spouse with no assets.

  • Keep it fair — Fairness and the avoidance of unconscionable terms are central to whether the agreement will ultimately stand.

Protect What's Yours

Contact us, an experienced prenuptial/postnuptial agreements lawyer in Long Beach, CA, for a free consultation at
(310) 740-0716 and (562) 533-0806.