Premarital agreements allow spouses to “opt out” of most or all community property rights prescribed under the law. Normally, under California community property law each spouse’s income from employment or labor is community property. A premarital agreement can specify that each spouse’s income is their separate property. Spouses can prevent each other from obtaining an interest in separate property, such as a house, they bring to the marriage. Spouses can agree that property they purchase in their own name during the marriage is their separate property. Also, the parties can make arrangements regarding spousal support upon divorce. However, arrangements regarding spousal support in the agreement are always subject to review by a court at the time of divorce. A court can rule that the spousal support provision is unfair under the circumstances at divorce and make a spousal support order even if the agreement specifies no or limited spousal support.
Premarital agreements entered into after January 1, 1986 are governed by the Uniformed Premarital Agreement Act which can be found at California Family Code Sections 1600 -1617.
There are strict requirements imposed under the Act:
- The agreement must be in writing;
- The party against whom enforcement of the agreement is sought must have been represented by independent legal counsel or, after being advised to seek such counsel, expressly waived such representation in a separate writing;
- The party against whom enforcement is sought had at least seven calendar days to review the agreement before it was signed; and
- If the party against whom enforcement is sought was not represented, was fully informed in writing, in a language in which the party was proficient, of the terms and basic effects of the agreement and acknowledged in writing the receipt of such information.
- The party seeking to enforce the agreement must have made full disclosure of assets and debts.
