A valid, well-written prenuptial agreement can save a lot of trouble for California couples in the event of a divorce. While some people still feel reluctant to contemplate the possibility their marriage will not last, an increasing number of Americans sees prenups as a prudent measure.
As a good prenup should save you at least some of the litigation involved in a divorce, the last thing you need is protracted arguments about the validity of the prenup or the meaning of one of its provisions. An experienced attorney can draft a properly constructed document that clearly conveys your intentions.
Requirements for a valid prenup
California law sets forth extensive requirements for a prenuptial agreement to be enforceable. To begin with, an agreement must be in writing, and both parties need to sign it.
Considerations of fairness
The law also wants to avoid situations where one party signs due to feeling pressured or without fully understanding the agreement. Each party ideally should have an attorney review the agreement and provide advice. Someone who does not want a lawyer needs to sign a written waiver and acknowledgment of having received a written explanation of the agreement and that no duress or fraud was present.
At least seven days must pass between the presenting of the agreement and the parties signing it. This is to avoid scenarios such as where the groom suddenly produces an agreement hours before the wedding or uses other types of pressure tactics.
What a prenup can and cannot cover
Couples can use a prenup to make a variety of decisions about issues such as property division, alimony and the fate of specific assets. If the prenup provides a waiver of rights to alimony, the courts will not enforce this provision if the waiving party did not have a lawyer. They generally will not enforce a highly unfair provision even if both parties did have lawyers.
Finally, prenups may not contain provisions going against public policy. A common example of an unacceptable provision is the waiver of child support. An attorney can tell you more about elements that may not be legal.