In the state of California, unless the husband and wife agree otherwise, through a valid prenuptial agreement, anything and everything earned by the efforts of either party is split 50-50 in the event of a divorce. Additionally, if one spouse dies without a valid will, the law will decide what goes to the surviving spouse--and it may not be at all what the parties intended.
Your choices when making the decision to marry may be to either spell it out beforehand, or fight it out when things go wrong, and spelling it out leaves you with many fewer headaches should the marriage end or your spouse die.
For prenuptial agreements executed after January 1, 2002, the California Family Code provides that the agreement will be void if it was: involuntary, had a lack of adequate disclosure or the agreement violated public policy. Taking those reasons under careful consideration, these rules follow:
- Ensure that the agreement is fair and equitable.
- Don't leave one party without any means of support in the event of a divorce.
- Always make sure both parties have provided full disclosure of all income, assets and liabilities.
- Don't wait until just before the wedding to sign such an important contract.
- Both parties should be fully represented by independent counsel.
Should you choose not to have your own attorney when constructing a prenuptial agreement (a very bad idea) you must sign a separate acknowledgement stating you were advised to retain your own attorney but declined. If you decide just days before the wedding that a prenuptial is a good idea, you are too late. The law states that at least seven days must elapse between the date that the parties were "first presented" with the agreement and advised to seek independent counsel and the time the agreement was signed. Even if you start working on your prenuptial contract weeks ahead of your scheduled wedding you still may not fall within the time constraints because the law is not clear on whether the seven days runs from the first or last draft of the agreement.
What a Prenuptial Agreement Can--and Can't--Do
California law holds the prenuptial agreement to be a fairly powerful document. A couple can waive their rights to share property (voiding the community property law) and can limit spousal support in the event of a divorce. What the California courts have not allowed for are penalties in prenuptial agreements that bring sanctions for infidelity or the use of recreational drugs. Courts will not uphold or enforce requirements written into a prenuptial agreement regarding who does the dishes or where to take the children to church. California, like most states, has very specific laws regarding prenuptial agreements, and it is certainly to your benefit to hire an attorney who is experienced in this specific type of contract.
