Prenuptial agreement, also referred to as prenups, are legal agreements that couples sign before marriage to determine how assets will be divided in the event of a divorce. Despite their increasing popularity, there are still misconceptions about their purpose.
If you reside in California, our family & divorce lawyers in Los Angeles can assist you in safeguarding your assets and planning for your future, both during and after marriage.
Prenups are not exclusively for situations in which one partner possesses significantly more wealth or debt than the other. There are various reasons why you may wish to establish financial plans or agreements with your future spouse in writing before your wedding day. For instance, you may want to shield your partner from your debt, or you may want to make it easier to recover financially in the event of a divorce.
Our Los Angeles prenuptial agreement lawyers created this guide to explore these reasons and guide you through the process of creating a prenuptial agreement.
What is a Prenuptial Agreement?
A prenuptial agreement, commonly known as a prenup, is a legally binding document that couples sign prior to getting married. Its purpose is to outline the distribution of assets and liabilities in the event that the marriage ends in divorce or separation. In general, a prenup contains provisions related to the division of property, spousal support, and other financial matters. These agreements are often utilized as a means of protecting the financial interests of one or both parties, while also defining the financial rights and obligations of each spouse both during the marriage and in the event of a divorce.
Why do I need a prenuptial agreement?
A prenup agreement can have various reasons other than protecting assets. For example, if you have children from a previous marriage, you may want to specify property that would pass to them instead of your spouse after your death. Protecting a spouse from the other’s debt is another common reason to get a prenup, especially if one partner has significant debt.
Another reason to get a prenup is if one spouse owns a business, a prenup can also help protect business assets, reducing the impact on co-owners and employees.
Although no one plans for divorce when getting engaged, almost 41% of first marriages end in divorce, making it essential to be prepared for the worst.
Besides, state laws governing the division of assets during divorce already act as a type of prenup. If you don’t think these laws will result in a fair distribution, it’s wise to write your rules to apply to your marriage.
Having a prenup in place can simplify the divorce process and prevent disputes later.
What Makes a California Prenup Legally Enforceable
Signing a prenuptial agreement is only half the job. California law sets specific rules for disclosure, timing, and legal representation, and missing even one can make the agreement unenforceable when you need it most.
Every Party Gets at Least 7 Calendar Days Before Signing
California law requires at least seven calendar days between when a party is first presented with the final agreement and when they sign it, whether or not they have an attorney. Signing before that window closes can make the entire agreement unenforceable.
The Legal Foundation Under California's Premarital Agreement Act
Family Code Sections 1600 through 1617 set the baseline rules every prenup must follow.
In Writing, Signed, No Payment Required
A California premarital agreement must be in writing and signed by both parties to be valid. Unlike most contracts, it does not need to involve an exchange of money or property to be enforceable.
Full and Fair Financial Disclosure
Both parties must fairly and reasonably disclose their property, debts, and income before signing. An agreement built on hidden assets or incomplete financial information is vulnerable to being set aside later.
Independent Counsel: A Stricter Rule for Support Waivers
California treats a spousal support waiver very differently from the rest of the agreement.
- A Right, Not a Requirement: Each party has the right to independent legal counsel before signing.
- Can Be Waived: A party can waive that right, as long as the waiver is knowing and in writing.
- Still Enforceable: Property division and debt allocation terms can still hold up even if one party chose to go without an attorney.
- Counsel Is Mandatory: A waiver of spousal support is unenforceable if that party was not represented by independent counsel when signing.
- No Workaround: This rule applies even if the unrepresented party was informed of the right to counsel and chose to waive it anyway.
- Reviewed Again Later: Courts can also refuse to enforce a support waiver that is unconscionable at the time enforcement is requested.
What a Prenup Can and Cannot Decide
California limits premarital agreements to matters the law allows parties to contract around.
Cannot Be Included
Void ProvisionsChild Support Terms
California law does not allow parents to predetermine or limit a child's right to support before the child is even born.
Provisions Encouraging Divorce
Terms that financially reward or penalize a party specifically for filing for divorce can be found against public policy.
Anything Illegal
A prenup cannot require or facilitate an act that violates a criminal statute.
Can Be Included
Enforceable ProvisionsProperty & Debt Division
Couples can define which assets and debts stay separate and which become community property.
Spousal Support Terms
Support can be limited, structured, or waived, provided the independent counsel requirement above is met.
Business & Inheritance Protection
A prenup can shield a business, professional practice, or an inheritance earmarked for children from a prior relationship.
A “Fair at Signing” Agreement Can Still Be Thrown Out Later
Courts can refuse to enforce a spousal support provision if it is unconscionable at the time enforcement is requested, even if it seemed reasonable when the couple signed it years earlier. This is one of the most common ways a prenup gets challenged during a divorce.
What Voids a California Prenup
These are the most common grounds a court uses to set an agreement aside.
Coercion or Duress
An agreement signed under threats, last-minute ultimatums, or emotional pressure can be set aside as involuntary.
Skipping the 7-Day Window
Presenting a final agreement and requiring a signature within days of the wedding, without the mandatory review period, is one of the most common enforceability challenges.
Incomplete Financial Disclosure
Leaving out a bank account, a business interest, or a debt can undermine the entire agreement if it comes to light later.
Building a Timeline That Holds Up in Court
The practical order of operations for a prenup that survives a later challenge.
Exchange Full Financial Disclosures
Each party puts every asset, debt, and income source in writing before any drafting begins.
Before Drafting StartsRetain Separate Attorneys
Each party engages independent counsel, especially critical if the agreement includes a spousal support waiver.
Early in the ProcessPresent the Final Draft Early
The final agreement must reach both parties at least 7 calendar days before signing, not the wedding date itself.
7+ Days Before SigningSign Without Pressure
Both parties sign voluntarily, free of last-minute changes or ultimatums, to preserve enforceability.
At SigningSteps to Creating A Prenuptial Agreement in California
To ensure a fair and legally binding prenuptial agreement, it’s essential that each party hires their own independent attorney. This is because each person has different assets and priorities that they want to protect, and having separate legal representation helps to avoid conflicts of interest.
While it’s possible for one party to waive their right to independent counsel, it’s generally not recommended as it can make the prenup more difficult to enforce. Therefore, it’s best for both parties to have their own lawyer who can review the agreement and ensure that their client’s rights and interests are protected.
Finding a knowledgeable attorney for this process can be daunting, but a good starting point is to ask your estate planning attorney for assistance or a referral. Estate planning attorneys often work on premarital agreements as part of their services, or they can refer you to a qualified attorney who does. By working with an experienced attorney, you can have peace of mind that your prenup will be drafted correctly and fairly.
Step 1: Disclosure of all assets and debts by both parties
When creating a prenuptial agreement, it’s important for both parties to provide a comprehensive list of their assets and debts. To ensure the validity of the agreement, it’s crucial to be honest and thorough in making this list. Failure to disclose information could potentially lead to the prenup being challenged in court at a later date.
Before the initial consultation with a prenuptial agreement attorney, they may ask you to complete an intake form. This form can serve as a useful tool in helping you list your assets and debts by category, ensuring that nothing is left out.
Step 2: Open discussion of a couples financial future together
Although not mandatory, it is advisable for both parties to have an open conversation about their future financial life together. It is essential to decide whether to have joint or separate bank accounts, who will be responsible for paying the bills, how to file taxes (jointly or separately), and how to make significant purchases. By aligning financially, you can avoid various marital problems in the future.
Step 3: Prenuptial agreements are drafted and reviewed by their attorneys
When planning to get married, it’s important to consider creating a premarital agreement that outlines important aspects of the couple’s financial life. Here are some key elements that should be included:
- Distinguish between separate and community property. Separate property belongs to the partner who brought it into the marriage, while community property is shared. It’s important to have a clear plan for how shared property will be divided in the event of a divorce.
- Determine how existing debts will be handled. Will each partner be responsible for their own debts after marriage, or will they be shared? This should be spelled out in the premarital agreement.
- Define spousal support, or alimony. In the event of a divorce, will either spouse be required to pay alimony? This should be clearly stated in the agreement.
- Address real estate concerns. If the couple shares a home, what will happen to it in the event of a divorce? Will it need to be sold, and if so, how will the proceeds be divided?
- Plan for taxes. In the case of a divorce, who will be responsible for paying any taxes owed?
- Specify how long the prenuptial agreement will be valid. If the agreement contains a “sunset clause,” this means it will expire on a specified date. If not, it will remain in effect indefinitely.
- By taking these steps and creating a premarital agreement, couples can protect themselves and their assets in the event of a divorce.
By taking these steps and creating a premarital agreement, couples can protect themselves and their assets in the event of a divorce.
California courts will not enforce the following provisions of a divorce agreement:
- Any clauses regarding child custody or child support should be excluded from the prenuptial agreement.
- Any spousal maintenance requirements should not be included if the signing spouse did not obtain independent legal counsel before signing.
- No terms should require a spouse to commit illegal acts.
- The agreement should not contain any clauses that are unjust, exploitative, unfair, or deceptive.
- Any terms that require one spouse to change their appearance, such as losing weight, should not be included.
- The agreement should not contain any terms that relate to the couple’s relationship.
By excluding these types of clauses from the prenuptial agreement, couples can ensure that their agreement is fair, legal, and protects the interests of both partners.
Step 4: Make sure your prenuptial agreement is finalized and signed
In California, it’s important to follow specific guidelines when creating a prenuptial agreement. The document must be in the possession of each party for at least seven days before signing it to be considered valid under the law. Additionally, both parties must sign the agreement in the presence of a notary, which is often available at attorney offices. It’s important to keep a copy of the agreement in a secure location, such as a safe or safety deposit box, and to have your attorney keep a copy on file, particularly if you have an estate planning file with them.
Speak with Thomas Sands about protecting your future
If you have any questions about creating a prenuptial agreement or are ready to begin the process, please feel free to reach out to our office for assistance.
Our affordable family lawyers in Los Angeles will assist you during the process and offer payment plans that will fit you financial situation. Representing individuals, families, and businesses California and Ventura County, we are here to help you navigate your legal issue with compassion, experience, and unparalleled skill. Contact us directly online or call at 213-788-4412 today for a free case evaluation.
Article reviewed by
Thomas D. Sands, Esq.
Thomas D. Sands is the founder and CEO of The Sands Law Group, APLC. A California attorney with more than two decades of experience, he represents clients in divorce and family law matters as well as civil litigation and real property disputes. His approach emphasizes attentive, practical, and cost-conscious representation.
Sands is a 2023 Litigator of the Year honoree of the American Institute of Trial Lawyers and a 2023 Lawyer of the Year honoree of the American Institute of Legal Professionals. His firm has also received recognition among the 2025 Best Law Firms in America, a 2026 Benchmark Best of award, and a 2026 Law Firm of the Year honor.
TOLL-FREE: 855-SANDS4U
