California prenuptial Laws Explained

California prenuptial laws consist of the Uniform Premarital Agreement Act (UPAA) and the California Family Law Code (Family Code). California is a “community property” state, which means that all property acquired during the marriage, except that of gift, bequest, inheritance, separate property and the rents, profits, appreciation thereon is community property. See Family Code §760.

It is important to understand that in California, separate property can be “transmuted” into community property inadvertently in some cases through commingling. See Family Code §§850-853. A California prenuptial can protect you from inadvertent conveyances of separate property.

Interestingly, the California prenuptial laws state that community property will be split equally at the dissolution of the marriage. Therefore, California is a “no fault” state – meaning that it makes no difference to judge the reason for the divorce.

In 2000, the California prenuptial laws were significantly changed by the Barry Bonds Case (not the steroid one). Premarital agreements prior to the California Supreme Court case involving Bonds and his ex-wife Susann (In re Marriage of Bonds), were upheld so long as both parties voluntarily signed them. The Bonds case changed the California prenuptial game forever by imposing stricter requirements. In addition to old California prenuptial laws of writing / voluntariness / full disclosure, a California prenuptial must:

1. Be presented to other side in complete form 7 calendar days before signing (this means in the other spouse’s hands 7 days before signing, not 7 days before marriage). Britney Spears and K-Fed created a faux wedding prior to their actual wedding, which many speculate was necessary to avoid problems with prenup validity under California law (e.g., the couple did not hold their prenup for 7 days prior to the faux wedding, so they had to push out the date of their real wedding).

2. Include waiver of counsel, if any, in a separate writing.

3. Be drafted in language in which the party is proficient.

4. Allow for independent 3rd party to explain the terms to the party in writing. California prenuptial law doesn’t demand that each party have an attorney, but in order to satisfy this requirement (and ensure the validity of your California prenuptial agreement), most parties seek independent counsel.

To further complicate California prenuptial laws, California has adopted the UPAA, but has made some amendments. The amendments were a response to the Bond’s case discussed above. The UPAA describes the parameters and requirements for a California prenuptial to be enforceable. Interestingly, the UPAA gives no direction on what provisions should be included. Consequently, a skilled California prenuptial attorney should be retained to discuss your unique situation.