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What are the legal requirements of a prenup?

The following is a list of requirements for the drafting of a valid prenuptial agreement in California. This is not meant to be an exhaustive list, but the bare minimum. If you would like to enter into a prenuptial agreement, you should consult with an attorney well versed in what California law says about prenuptial agreements.

1. A prenuptial agreement must be in writing and signed by both parties.

2. The agreement must be executed “voluntarily.”

3. Prior to the signing of the prenuptial agreement, a full disclosure of property and financial obligations of both parties must be made.

4. Either both parties must be represented by counsel or the party without counsel must acknowledge in a separate writing that he/she was advised to seek independent counsel and expressly waived the same.

5. The party presented with the prenuptial agreement must be given seven days from the initial presentation of the agreement to the date of execution of the agreement. (recent case law has determined that the 7 day waiting period does not apply if both parties are represented.)

6. If one party is unrepresented by counsel then he/she must be fully informed of the legal effect of the terms of the agreement and acknowledge in a separate signed document having understood the rights and/or obligations he/she is giving up by entering into the agreement.

7. If a spousal support is included in the prenup, the spouse against whom enforcement may be sought must be represented by independent counsel or the provision will be unenforceable. This applies even if there is an express waiver of independent counsel.

The best way to enter into a prenup that you can be confident will withstand attack is to require that your soon to be spouse has independent counsel. My office will not even draft a prenup for a client unless the other party is represented by his/her own attorney on the drafting and negotiating of the prenup. It’s just too easy for an unrepresented party to appeal to a court to invalidate a prenup. Better safe than sorry.

We take pride in efficiently representing clients throughout California who wish to enter into prenuptial and postnuptial agreements. The entire process can be handled over the phone. If you would like to speak with one of our attorneys, please fill out our potential client intake questionnaire or contact us at (949) 478-4401.

Initial telephone consultations are free of charge.

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