In California, the guidelines for drafting a prenuptial agreement are based on the Family Code Section 1610-1617. Under Chapter 1610, premarital agreements are defined as an agreement between marrying spouses that should be effective during marriage. In creating a prenup, both parties must sign the document and it should be in writing. This marital contract includes the rights and obligations of each party pertaining to assets, properties and earnings. It also addresses the right of each spouse to buy, sell, transfer, use, lease, consume or manage those properties.
Spouses should also discuss how property will be divided in the event of dissolution of the marriage, death of a spouse or any other event. A prenuptial agreement should be considered when making a will, trust or any estate planning document. Once the document is signed and a couple is married, the prenup becomes enforceable. A prenuptial agreement cannot address all divorce legal issues related to divorce.
Accordingly, the agreement cannot include any provisions that discuss child support. The same goes for provisions that deny or restrain the rights of either party to seek spousal support because the party being asked to pay support was not represented by a lawyer not associated with the approval of the agreement. It is also not enforceable if the spousal support provision is unfair or favors one spouse over the other.
The validity of the prenuptial agreement depends on various factors. For example, if the document was signed a short time before the marriage, the premarital agreement can be nullified because both parties do not have adequate time to review it. This contract signed as a result of coercion or duress is also considered non-enforceable.
Source: Leginfo.ca.gov, “Family Code Section 1610-1617” Accessed Sept. 16, 2014
