Changing or cancelling a prenuptial agreement after the wedding

An agreement is not permanent

Couples sign a premarital agreement believing it settles things for good, and that belief cuts both ways. It reassures the person who wanted it and it worries the person who signed it, and both of them are working from the same wrong premise.

An agreement made before a wedding can be changed afterwards, or cancelled altogether. What it takes is a formality, and the formality is the whole subject of this page.

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

The requirement, and the two ways people fail it

A written agreement signed by both of you. That is the whole of it, and no consideration is needed: neither of you has to give the other anything to make the change effective.

Couples fail it in two ways and almost never in any other.

The first is simply not doing it. They agree between themselves that a clause no longer reflects their lives, behave accordingly for a decade, and assume the change happened because they both meant it.

The second is doing something adjacent and assuming it counted: a letter one of them wrote, an email exchange, a note kept with the agreement, a conversation in front of a friend who would remember. None of those is a written agreement signed by both of you.

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

What behaving differently does, which is nothing

This is the part worth dwelling on, because it is where the real damage happens.

A couple whose agreement says the house stays separate, who then pay the mortgage jointly for twelve years, have not amended anything. They have created a set of facts that somebody may argue about later, which is a different and worse position than either having the agreement they wrote or the one they meant.

The same is true of accounts kept differently from how the agreement contemplates, of a business one party comes to work in, and of money that was supposed to stay separate and did not.

Conduct does not amend a document. It does create arguments, and the arguments are expensive precisely because the couple were acting in good faith and there is nothing in writing to settle what they intended.

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

Why couples want to change one

The reasons are ordinary and they are rarely about conflict.

A term that no longer fits. An agreement written when one party had a modest salary and the other a business, ten years into a marriage where both of those have changed.

A child. Arrangements that made sense for two working adults look different when one of them has stopped working.

Property that has moved. Something was sold, something else was bought, and the agreement describes a portfolio that no longer exists.

And relief. Sometimes a couple simply decide they no longer want the thing, and cancelling it outright is a perfectly ordinary decision.

Amending, and cancelling, are different decisions

An amendment changes part of the agreement and leaves the rest standing. A revocation ends it entirely, and what replaces it is whatever the position would have been without an agreement at all.

That second consequence is worth stating plainly, because couples reach for revocation as the simple option. Cancelling an agreement does not restore a neutral state chosen by the couple; it restores the default, which is the thing the agreement existed to vary.

Where the aim is to soften a term rather than remove the framework, an amendment is almost always what is actually wanted.

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 amendment is made by people who are married, which changes the setting

The premarital agreement was negotiated by two people who were not yet married. The amendment is made by two people who are, and that is not the same relationship.

Spouses are in a position of trust with one another, of the highest good faith and fair dealing, and neither may take unfair advantage of the other. That duty did not apply to the original negotiation and it applies to this one.

So an amendment that leaves one spouse better off than before is being made in circumstances where the spouse who gained has something to explain. That is not a reason to avoid amending. It is a reason to make the amendment carefully and to build the record while the facts are fresh.

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)

Where one spouse takes an unfair advantage from an agreement made during the marriage, California law may presume undue influence and put the burden on that spouse to show there was none. Fam. Code, § 721; In re Marriage of Burkle (2006) 139 Cal.App.4th 712; In re Marriage of Mathews (2005) 133 Cal.App.4th 624

Where the amendment changes what property is

Many amendments are really about the character of something owned: separate property becoming shared, or shared property becoming one spouse’s.

That is a change with a formality of its own, and it is more demanding than people expect. A writing that merely deals with the property is not enough; it has to say that the character is being changed.

This catches couples who think an amendment referring to an asset has dealt with it. Referring to a house and changing what the house is are different acts, and only one of them needs the express words.

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 an amendment cannot reach

The limits on an amendment are the limits on the agreement it amends, and two are worth naming because couples reach for them.

A child’s support is not settled by what two parents agree between themselves, and an amendment cannot do what the original could not.

And an amendment cannot make good a defect in the original by declaring it good. Where the concern is that the first agreement was signed in circumstances somebody might later question, a clause in an amendment saying both parties confirm it was properly made does not repair anything. If the original is the worry, the honest options are to revoke it and make a fresh agreement, or to accept it as it is.

That distinction matters because a confirmation clause is a common instinct and it gives false comfort.

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

Timing, and the anniversary trap

Amendments have no wedding date driving them, which sounds like an advantage and is usually why they take years.

The pattern is familiar. A couple agree something should change, agree it again the following year, and never do it. Meanwhile they are living as though the change had been made, which is the position this page exists to warn about.

The practical advice is to treat the decision and the document as one act rather than two. If it is worth changing, it is worth a fortnight of somebody’s attention now, because the alternative is not "later". The alternative is a set of facts that contradict a document, discovered by somebody else at the worst possible time.

What this office does with an amendment

The original agreement is read first, in full, before anything is drafted. An amendment written without reading what it amends is how a couple end up with two documents that contradict each other.

Where the original was prepared elsewhere, this office asks for the executed copy and for the date it was signed. Where the couple cannot find it, that is dealt with at the start rather than discovered halfway through.

Both parties complete fresh schedules of property and debts. The financial picture at the time of the amendment is what the amendment is being made against, and the picture from the original agreement is a decade out of date.

That duty includes giving the other spouse access at all times to any books kept about a transaction, rendering on request true and full information about anything affecting a transaction that concerns community property, and accounting for any benefit one spouse takes from such a transaction without the other’s consent. Fam. Code, § 721, subd. (b)(1)–(3)

The signing period, and whose practice it is

An amendment is signed by two people who are already married, so the periods that attach to a premarital agreement are not what governs it.

This office applies the same seven day period anyway, and says whose practice it is rather than letting anybody assume something else stands behind it.

The reasoning is the duty described above. A spouse handed an amendment and asked to sign it the same afternoon has a story, and the spouse who gained is the one who will have to answer it. A week removes the story at no cost.

On an agreement between people who are already married, this office applies the same seven calendar day period before signing that it applies to a premarital agreement. That is this office’s own practice. The Family Code does not require it between spouses.

Independent counsel on an amendment

One lawyer still cannot act for both of you, and the reasons are stronger here than they were before the wedding.

The other spouse is free to retain anyone they choose, and this office will not recommend, pay for, or receive anything from whoever that is.

Where an amendment touches spousal support, representation stops being advisable and becomes the condition on which that term depends.

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.

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)

Amending an agreement made in another state

Couples move. An agreement signed in Illinois or New York, by people now living in California, raises a question before the amendment can be drafted: which law the couple are operating under now.

Most well-drafted agreements contain a clause saying which state’s law governs how they are read, and that clause is the first thing to look at. It does not always answer everything, because it addresses construction rather than every consequence of living somewhere else.

The practical position is that this office reads the original, including that clause, before saying what an amendment would look like. Where the answer is that somebody in the original state should be involved, that is said at the outset rather than after a document has been drafted on an assumption.

An agreement from another state is not a problem to be worked around. It is a document to be read first.

If you are being asked to sign one

Being handed an amendment is not the same as being handed the original. You already have an agreement, and what is in front of you changes it. The first question is what it changes from, which means reading the original alongside it.

If you want somebody of your own to read both with you rather than take over a negotiation, that is a defined service at a flat fee.

Where you have been given an agreement drafted by someone else’s lawyer, this office acts as your own lawyer: a written review of what the agreement does to you, advice on your rights including any spousal support, the earliest date you should sign, and a certificate for your records confirming that this office reviewed the agreement with you.

What it costs

A flat fee, quoted before anything begins. An amendment is priced as its own matter rather than as an hour on top of an old one, because the work is the same work: read what exists, take fresh schedules, draft, serve, run the period, record it.

Where the original cannot be found, or was never properly executed, that is a different conversation and the office has it before quoting rather than after.

A revocation is priced the same way. It is a shorter document than an amendment and it needs the same care, because what follows a revocation is the position the original agreement was written to avoid, and a couple should understand that before signing it rather than afterwards.

This office quotes a flat fee before any work begins, and the written fee agreement states what it covers, when each part is earned, and your right to a refund of anything not earned.