PRENUPTIAL AGREEMENTS

California community property laws create a presumption that any property acquired by a married person during marriage is community property, except property that is acquired by gift or inheritance.  The community is an artificial entity created in law in which a husband and wife each have a one-half interest.

             Pre-Nuptial, also called anti-nuptial or premarital agreements, create a contract between the parties to circumvent the community property laws of the state.  Thus, the agreement may operate to create a separate interest in property acquired, income earned, and/or debts incurred during marriage.  The agreement may also serve to identify separate property interests that exist at time of marriage.

             Pre-nuptial agreements,  when properly drafted and executed, will be enforced by California courts.   The California Family Code covers premarital agreements in §§ 1600 to 1617, however, most of the provisions governing such agreements are covered in §§ 1612 and 1615.  These sections sets forth the elements underlying the enforceability of pre-nuptial agreements in California: 

Section 1615 states:

 (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

             (1) That party did not execute the agreement voluntarily.

             (2) The agreement was unconscionable when it was executed and, before   execution of the agreement, all of the following applied to that party:

             (A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

             (B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

             (C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

 (b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

 (c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

             (1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

             (2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

             (3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written.

             The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information

             (5) Any other factors the court deems relevant.

             The issues of a waiver of child support and spousal support as part of a pre-nuptial agreement are treated separately in California Family Code §1612.  Succinctly stated, a waiver of child support is not enforceable in California.  The enforcement of spousal support rests on the question of whether the party against whom the waiver is sought to be enforced was represented by independent counsel at the time of the waiver, or it would be unconscionable [to enforce the waiver] at the time of enforcement. 

             A pre-nuptial agreement is a complex legal document which preparation is recommended to be left to a competent attorney.