How to Do a Prenup the Right Way

California is a community property state, meaning that during property division in divorce, all marital assets are divided 50/50 between the spouses. For some couples, the default rule works; for others, it doesn’t. And for couples who fall into the latter category, the only way to circumvent the default rule is to execute a prenuptial agreement before getting married. While that sounds simple enough, California family law courts scrutinize prenuptial agreements closely and are quick to find them unenforceable if they seem unfair or one-sided. If you’re considering executing a prenuptial agreement, you would be well-served by working with our Stockton prenuptial agreement attorneys to ensure enforceability to the greatest extent possible. 

Start the Process Early 

Timing is an often-overlooked aspect of drafting prenuptial agreements. That’s because, under California Family Code § 1615, prenuptial agreements must be entered into voluntarily to be enforceable. Courts generally are skeptical of agreements signed shortly before the wedding date, as this can create the appearance of coercion. As such, if you’re considering executing a prenuptial agreement, start early — ideally months, not weeks before the wedding date — and avoid major revisions immediately before signing. A Stockton prenuptial agreement attorney can help you create a paper trail documenting the exact dates your prenuptial agreement was drafted, revised, and signed.  

Take Financial Disclosures Seriously 

California Family Code § 1615 also requires each party to provide a “fair, reasonable, and full” disclosure of their property and financial obligations to the other party. Such disclosures include, but are not limited to: 

• Assets (e.g., real estate, bank accounts, equities)
• Liabilities (e.g., student loan debt, mortgages) 
• Income and expected earnings
• Business ownerships or business interests 

A good rule of thumb is to err on the side of over-disclosure rather than under-disclosure. Prenuptial agreements may also be found to be unenforceable where a party is unreasonably vague in their descriptions of their assets (e.g., using “various properties” vs. providing addresses and property descriptions). The more detailed and robust your disclosures, the less likely a court will be to find the agreement unenforceable, or worse, to suspect you of hiding assets. 

Obtain Your Own Attorney 

It might seem convenient and cost-effective to use a single attorney to draft a prenuptial agreement between the two parties. And while that may be true in the short term, it can cause problems with enforceability later on. While California law does not mandate that each party have its own attorney, it is nonetheless a best practice to do so for the following two reasons: 

1. Under California Family Code § 1615, a prenuptial agreement is considered invalid unless the party against whom enforcement is sought (1) was represented by independent legal counsel at the time of signing the agreement, or (2) was advised to seek independent legal counsel and expressly waived such representation in a separate writing. 
2. Under California Family Code § 1612, any provision in a prenuptial agreement regarding spousal support (i.e., alimony) — including a waiver of it — is unenforceable unless the party against whom enforcement is being sought was represented by independent legal counsel at the time the agreement was signed.  

So while it is technically possible to draft an enforceable prenuptial agreement using a single attorney for both parties, it’s best for each party to have its own counsel. Speak to our Stockton prenuptial agreement attorneys for more information about the advantages of being represented by independent counsel during prenuptial agreement negotiations. 

Studiously Avoid Ambiguity 

Ambiguity in prenuptial agreements can be fatal. If a provision is unclear, courts may disregard it or even interpret it against the drafter. And if there are many ambiguous provisions throughout the agreement, courts may even be tempted to find that it is unenforceable in its entirety. Thus, it is a best practice to define key terms explicitly, use consistent language throughout the document, and avoid vague constructions like “reasonable support” without further definition.

Exercise Caution When Including Spousal Support Provisions 

California law allows the parties to a prenuptial agreement to negotiate spousal support obligations. However, courts tend to view such provisions as “red flags” and may scrutinize their terms more closely than those of other provisions in the agreement. For example, a court may deem a spousal support provision as invalid where: 

• The party against whom enforcement was sought was not represented by independent legal counsel at the time the agreement was signed
• The spousal support provision is unconscionable at the time of enforcement — even if the party against whom enforcement was sought was represented by independent legal counsel

Thus, even if the provision was valid when the agreement was executed, a court may still find it unenforceable if it is unconscionable at the time of enforcement, for example, where the marriage was particularly long or where the income disparity between the parties is vast. If you’re considering including a spousal support provision in your prenuptial agreement, please consider working with our Stockton prenuptial agreement attorneys to draft it the right way. 

Build in Flexibility 

It can often be helpful to view prenuptial agreements as “living documents” rather than one-time agreements set in stone. For example, courts may look more favorably on a prenuptial agreement that builds in flexibility, such as: 

• Sunset clauses (i.e., provisions that expire after a certain amount of time)
• Caps, formulas, or tiers when addressing spousal support or other payment obligations from one spouse to another 
• Trigger-based provisions that allow modifications based on the occurrence of certain events, such as the birth of children or a career change

Generally, courts look more favorably on prenuptial agreements that allow for changes than those that bind the parties regardless of life’s ups and downs. 

Draft an Enforceable Prenuptial Agreement by Working With a Stockton Prenuptial Agreement Attorney 

Prenuptial agreements are helpful tools to establish expectations prior to marriage, but missteps during the drafting process can doom them at the enforcement stage. To maximize the chance that your prenuptial agreement will be found enforceable in its entirety, please speak to the Stockton prenuptial agreement attorneys at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.