What California law requires for a prenuptial agreement

The conditions in one place

A premarital agreement in California has to satisfy a set of conditions, and they are usually encountered one at a time, in articles about whichever condition the writer found interesting.

This page lists all of them, briefly, in the order they arise, so that a reader can see the shape of the thing. Each one that has its own page is linked, because the detail is where the useful part lives.

This is general information with the authority for each point. It is not advice about your own situation.

It must be a writing, signed by both, and it does nothing until you marry

The two structural conditions, and the easiest to satisfy.

Nothing spoken and nothing implied makes a premarital agreement, and no consideration is needed: neither of you has to give the other anything for it to be effective.

And the whole document sits dormant until the wedding. If the marriage does not happen, nothing in it ever operates.

A premarital agreement must be in writing and signed by both parties. It does not require consideration. Fam. Code, § 1611

A premarital agreement takes effect when the parties marry. Fam. Code, § 1613

The signature must have been voluntary, and that has specific content

This is where most of the conditions live. "Voluntary" here is not an impression about whether somebody felt free; it is a set of specific findings, and each has its own requirement.

The four that follow are those findings. Taken together they are the reason a careful matter takes weeks rather than days.

A premarital agreement is not enforceable against a party who did not sign it voluntarily, and the statute sets out what a court must find before it treats a signature as voluntary. Fam. Code, § 1615, subds. (a)(1), (c)

One: independent counsel, or a proper waiver

The party against whom the agreement is later asserted must have had their own independent lawyer when they signed, or have been advised to seek one and expressly given that right up in a separate writing.

A separate timing requirement attaches to that advice, which is dealt with under the periods below.

One lawyer cannot act for both of you. The page on independent counsel sets out who the condition attaches to, what the waiver route requires, and the one term where there is no route at all.

A premarital agreement is not treated as signed voluntarily unless the party against whom it is later asserted was represented by their own independent lawyer when they signed, or was advised to seek one and expressly waived that right in a separate signed writing. Fam. Code, § 1615, subd. (c)(1)

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

Two: the periods, and there are two of them

Seven calendar days must pass between the day a party is first given the final agreement and the day they sign it. On an agreement signed since the start of 2020, that applies whether or not they have a lawyer.

A second period attaches to the advice to seek counsel, and it starts on a different day. Where the two start apart, the later one governs.

The page on the seven day rule sets both out, explains what changed in 2020, and has a calculator that works backwards from a wedding date.

On an agreement signed on or after 1 January 2020, at least seven calendar days must pass between the day a party is first given the final agreement and the day that party signs it, whether or not that party has a lawyer. Fam. Code, § 1615, subd. (c)(2)(B)

Where a party is advised to seek their own lawyer rather than retaining one, that advice must be given at least seven calendar days before the final agreement is signed. Fam. Code, § 1615, subd. (c)(1)

Three: what an unrepresented party must be given

Where a party signs without their own lawyer, a set of protections applies, and they are specific rather than general.

They must be informed in writing of the terms and basic effect, and of what they are giving up; they must be proficient both in the language of that explanation and in the language the agreement is written in; and they sign a declaration recording that they received it and naming who provided it.

A party who signs without their own lawyer must be given a written explanation of the terms and basic effect of the agreement and of the rights and obligations they are giving up by signing it, must be proficient both in the language of that explanation and in the language the agreement is written in, and must sign a declaration saying they received that information and naming who gave it to them. Fam. Code, § 1615, subd. (c)(3)

Four: the circumstances of the signing itself

The last of the voluntariness findings is about the signing rather than the paperwork leading to it.

It reaches the agreement and the writings signed alongside it, which means a waiver of counsel and the declaration about the explanation are covered by it too.

The list of findings is also not closed, as the second claim below records, so it is not a set of boxes to tick.

A premarital agreement is not treated as signed voluntarily unless the court finds that the agreement, and the writings signed with it, were not made under duress, fraud or undue influence, and that neither party lacked the capacity to enter into it. Fam. Code, § 1615, subd. (c)(4)

A court may also weigh any other factor it considers relevant to whether the agreement was signed voluntarily. Fam. Code, § 1615, subd. (c)(5)

The second route of challenge: the bargain, and what was known

Everything above concerns how the agreement was made. There is a second line of attack, about the agreement itself together with what the party knew when they signed.

It is conjunctive, which matters: several things have to hold together, and disclosure is one element of it rather than a freestanding duty. That is why this office serves written schedules as a matter of practice, and describes doing so as practice rather than as a rule imposed from outside.

Knowledge the party already had, or reasonably could have had, counts as well.

And the question at the front of it is decided by the court as a matter of law, not by how anybody felt about the deal at the time.

An agreement that was unconscionable when it was signed is not enforceable where the party against whom it is asserted was not given disclosure, did not waive disclosure in writing, and did not otherwise have adequate knowledge. Fam. Code, § 1615, subd. (a)(2)

Disclosure can also be satisfied where a party already had, or reasonably could have had, adequate knowledge of the other party’s property and debts. Fam. Code, § 1615, subd. (a)(2)(C)

Whether a premarital agreement is unconscionable is decided by the court as a matter of law. Fam. Code, § 1615, subd. (b)

Conditions attaching to particular terms

Two subjects carry requirements the rest of the document does not.

A spousal support term needs the party it is used against to have had their own independent lawyer, and representation alone is not the end of it: the term is examined again when somebody tries to rely on it, and counsel at signing does not rescue a term that is otherwise unenforceable.

A change in the character of property needs a writing that says the character is being changed, in terms, rather than a document that merely deals with the asset.

A term about spousal support is not enforceable against a party who was not represented by their own independent lawyer when the agreement was signed. Fam. Code, § 1612, subd. (c)

A spousal support term that is otherwise unenforceable does not become enforceable just because the party it is asserted against had their own independent lawyer. Fam. Code, § 1612, subd. (c)

A change in the character of property is not valid unless it is made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. The writing must itself say that the character or ownership of the property is being changed; a writing that merely deals with the property is not enough. Fam. Code, § 852, subd. (a); Estate of MacDonald (1990) 51 Cal.3d 262

What the agreement may and may not contain

The subjects available are listed, and there is a catch-all with a limit on it.

Arrangements for a child’s support are outside what two parents settle between themselves, in any version of this document.

A premarital agreement may cover each party’s rights in property, how property is bought, sold or managed, what happens to property on separation, dissolution or death, the making of a will or trust, the ownership of a life insurance death benefit, and which state’s law applies. Fam. Code, § 1612, subd. (a)

A premarital agreement cannot adversely affect a child’s right to support. Fam. Code, § 1612, subd. (b)

Beyond the specific subjects the statute lists, a premarital agreement may cover any other matter that does not violate public policy or a statute imposing a criminal penalty. Fam. Code, § 1612, subd. (a)(7)

After the wedding: what still applies and what does not

Once you are married, the agreement can be amended or revoked, in writing and signed by both of you, and no consideration is needed for that either.

An agreement made from scratch after the wedding is a different document under different law, and almost none of the conditions on this page reach it. What governs it instead is the duty spouses owe each other.

After the parties marry, a premarital agreement may be amended or revoked only by a written agreement signed by both of them. No consideration is required. Fam. Code, § 1614

An agreement made after the wedding is not a premarital agreement, and the Uniform Premarital Agreement Act does not govern it. Fam. Code, § 1600 et seq.; Fam. Code, § 1610, subd. (a)

Spouses owe each other a fiduciary duty in their dealings with one another, of the highest good faith and fair dealing, and neither may take unfair advantage of the other. Fam. Code, § 721, subd. (b)

The order they actually happen in

Listed as conditions they look like a checklist. Lived through, they are a sequence, and the sequence is what decides how long a matter takes.

First each of you says what you own and what you owe, because nothing can be drafted against an unknown picture. Then the schedules are exchanged. Then the agreement is drafted against what those schedules say.

Then the final agreement is served on each party, together with the written advice to seek independent counsel. That service is the event the periods run from, and until it happens no clock is running at all.

Then the other party decides about a lawyer, and either retains one or is advised and gives up the right in a separate writing. If they are unrepresented, the written explanation and the declaration happen here.

Then the periods finish, and only then can anybody sign. A substantive change at any point sends you back to the service step with a fresh clock.

Seen that way, the common failure is obvious: couples start at the point where they are ready to sign and work forward, when the arithmetic runs backwards from the wedding.

What happens if a condition was missed

Nothing automatic. A condition that was not met does not void the agreement by itself, and nobody is notified.

What it does is leave something available to a party who later wants to argue about the agreement. Whether they ever do, and what comes of it, depends on facts that do not exist yet and on a document being examined years after anybody remembers making it.

That asymmetry is the practical reason for doing all of this properly at the time. The cost of meeting a condition is measured in days at the start. The cost of having missed one is measured in whatever the argument is worth at the end, and it falls on the person who wanted the agreement.

Why the conditions are procedural, and what that means for you

Read as a list, these are almost entirely about process: who had advice, when they got the document, what they were told, how the signing happened.

That is deliberate. Very little of it is about whether the bargain was a good one, and a great deal of it is about whether the person signing understood what they were agreeing to and had a real chance to take advice.

For a couple, the useful consequence is that the conditions are nearly all within their control, and they are satisfied by doing things in the right order with enough time. The parts that are not within anybody’s control are few.

It also explains why this office runs matters the way it does. Almost every procedural step exists to answer one of these conditions with a record made on the day rather than a recollection assembled years later.

What this does not tell you

This page sets out the conditions. It says nothing about the outcome of any particular agreement, and nothing on this site does, because that turns on facts that do not exist yet.

What it is useful for is the opposite direction: knowing what has to happen lets you see whether it did.

Reading this website does not create an attorney-client relationship. That relationship begins when this office accepts your matter and you sign the fee agreement.