Components of a Prenup or Premarital Agreement


Components of a Prenup

May to October is the most popular time that couples get married with September and June being the most popular months. If you are among those heading towards wedded bliss, a key part of your wedding to-do list should be discussing and drafting a prenuptial agreement with your partner.

A common misconception surrounding prenuptial and postnuptial agreements is that only wealthy and/or older couples need them. However, couples of any age and in any income bracket can and should create a prenuptial agreement as they can help:

  • ensure your future financial security,
  • protect certain assets, and
  • ease the divorce process in the event you separate or divorce.

What Can & Cannot Be Included in a Prenup?

California Family Code sections 1600-1615 define what can and cannot be included in a premarital agreement. For example, terms regarding child support and child custody/visitation cannot be included in a prenup, while provisions concerning spousal support (alimony) and property can be included. If you want to create a binding agreement, both parties must have independent legal counsel during the drafting, negotiation, and signing of the prenup. Waivers or limitations of spousal support may not be enforced at the time of divorce or legal separation if unconscionable or if the party who will be adversely affected did not have legal counsel at the time of signing the premarital agreement.

The following terms can be included in prenups:

  • Each party’s obligations and rights concerning the property they acquire during the marriage
  • Establishing what property was each party’s separate property acquired before marriage
  • The division of property in the event of their divorce, separation, or death
  • Each party’s right to buy, use, sell, transfer, exchange, or dispose of property
  • Ownership rights and the disposition of benefits (like life insurance policies or retirement plans)
  • Any other matters that can legally be included in the agreement (like pet custody)

Prenuptial agreements must be written and signed by both parties, and both parties must have their own counsel certify the document. A prenup can be deemed invalid if either party did not have full disclosure of assets and income and if the parties did not have at least seven days of contemplation before signing the final draft. It is also important to note that a prenuptial agreement should be signed at least a week before the wedding. This time allows couples to consider all the pros and cons and not feel pressured by the near-term wedding date.

Once signed, a prenuptial agreement will become effective once a couple is married. The agreement can be modified or revoked at any time if both parties sign a new agreement, best done with counsel and new disclosures (called a “post-nup” or “post-nuptial agreement”).

What Makes a Prenup Invalid?

If any of the following is proven by either party, a premarital agreement can be deemed invalid and will be unenforceable.

  • Either party did not enter into the agreement voluntarily.
  • The agreement is considered unfair or unconscionable because either party was not given an accurate disclosure, was not provided accurate financial or property information, or did not waive their right to a disclosure voluntarily.
  • The court deemed the agreement invalid due to other factors, such as duress or unconscionability of spousal support at the time of enforcement.

Contact Kraft Miles, A Law Corporation

Our San Fernando Valley divorce lawyers have six decades of combined experience, and we are dedicated to helping clients navigate their legal matters. If you and your partner need help to draft a valid marital agreement, our experienced attorneys are here to advise you of your legal options and rights. We can also help you determine what is in your and your family’s best interest regarding the designation of assets in the prenuptial agreement.

To learn more about our services, call (818) 462-5076 or reach out online today.

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