Historically, courts looked unfavorably upon prenuptial agreements as a matter of public policy.  The prevailing attitude was that a prenuptial agreement turned what was supposed to be the most intimate and sacred bond into a financial arrangement.  Then, in the late 1960’s and early 1970’s something happened. Societal values evolved and the courts began to realize that for all intents and purposes, a marriage is a type of financial arrangement.  The courts started to apprehend that practical considerations made prenuptial agreements good for couples to explore, and as a result, they began enforcing them.

Not only do prenuptial agreements force people to consider the financial ramifications of marriage, but they also reduce conflict in the event of a divorce. Anyone who has gone through a divorce will tell you that the less conflict there is in dissolving the marriage, the lower the financial burden will be to both parties. 

The benefits of a prenuptial agreement extend beyond the realm of divorce as well.  A prenuptial agreement can protect the wishes of a spouse in the event of him or her dying without a validly executed will. 

Prenuptial Basics

In most jurisdictions, there are several requirements for a validly executed prenuptial agreement.  First, the agreement must be in writing; there are no oral prenuptial agreements.  Second, the agreement must be executed voluntarily; if it is found that either party signed the agreement under duress or unfair pressure from the other side, it will not be enforced.  Third, the agreement must not be unconscionable; if it leaves one party destitute or places an unreasonable burden on one party, then it will not be enforced. Lastly, the agreement needs to be validly executed by both parties “in the manner for a deed to be recorded;” in other words, the prenup needs to be notarized. 

The aforementioned prenuptial requisites not only are necessary at the time of the agreement's signing, but they must also be sustained for the duration of the marriage in order for the agreement to be enforceable should the marriage be dissolved.  For instance, one of the conditions of a valid prenuptial agreement might be that the marital home will go to one of the parties upon the dissolution of the marriage. This might be conditioned upon that party making the mortgage payments directly from his or her income.  However, if the couple decides to co-mingle their income and use that co-mingled income pool to make mortgage payments, the otherwise valid prenuptial agreement may be held unenforceable.

Prenuptial Agreements in California

California has enacted the Uniform Premarital Agreement Act, but there are a few differences in its version of the Act.  In California, it is very difficult to enforce a prenuptial agreement if attorneys did not separately represent the members of the couple at the time of the agreement's signing. There is also a mandatory seven day waiting period between the presentation of the document and the signing by the two parties. Section 1615(c) of the California Family Law Code governs the requirements for a valid prenuptial agreement. 

As previously mentioned, prenuptial agreements do more than just protect a party who is entering into marriage with a disproportionately large amount of assets.  In the absence of a prenuptial agreement and without a valid will, the law will decide what assets will go to the surviving spouse no matter what the true intentions were of the deceased spouse.  Moreover, as a pragmatic consideration, it just makes good sense for couples to understand what their financial rights and responsibilities are prior to entering into marriage.

Anyone seeking to execute a prenuptial agreement should seek legal counsel for every step of the process as there are too many legal considerations to take care of without professional help.  There are both procedural and substantive issues with regard to the creation of the agreement as well as federal laws that govern issues that would seem to logically fit the purposes of the prenup.

Examples of California prenuptial agreements can be found here.

*You can also see what a California prenuptial agreement looks like on Free Legal Aid.