Back
Why People Struggle with Prenuptial Agreements
- Misunderstanding California’s community property rules and assuming a prenup is unnecessary. (By default, California treats most assets acquired during marriage as community property.)
- Underestimating formal requirements for enforceability (e.g., full disclosure, voluntary execution, fairness)
- Leaving drafting until the last minute, this can create pressure, which may invalidate the agreement
- Including terms that California will not enforce (for example, child support or custody provisions)
- Failing to obtain independent legal counsel or waiving it improperly, especially when spousal support is limited
In this article, you’ll learn how to avoid these pitfalls and make informed choices. Many of these issues start with bad assumptions, see the common myths about prenups in California.
How Prenuptial Agreements Work in California
In California, prenuptial agreements are regulated under the state’s adaptation of the Uniform Premarital Agreement Act (UPAA).
Here’s what couples should know and do:
- Start early. Don’t wait until days before the wedding. Allow time for negotiation, revision, and legal review.
- Full financial disclosure. Both parties must provide a complete list of assets, liabilities, and income. Non-disclosure can render the agreement voidable.
- Independent counsel or informed waiver. Each party should have their own attorney. If one party gives up that right, it must be done knowingly in writing.
- Fairness and absence of unconscionability. Terms that are extremely one-sided or leave one party destitute may be invalidated.
- Timing and execution rules. The final version should be delivered at least 7 calendar days before signing. The signing must be voluntary and notarized.
- Avoid unenforceable clauses. You can’t pre-agreed child support, custody, or mandates about personal behaviors (like infidelity clauses) in a way that violates public policy.
Common Mistakes & How to Avoid Them
Below are pitfalls couples often make and what to do instead:
- Mistake: Waiting until the last moment. Why: It can appear coercive or deprive one party time to review. Correct approach: Begin drafting months in advance. Allow multiple review cycles with legal counsel.
- Mistake: Minimal or hidden disclosures. Why: If the hidden information surfaces later, a court may void or partially invalidate the agreement. Correct approach: Be transparent and document disclosures fully and clearly.
- Mistake: Overreaching terms (e.g. waiving spousal support without counsel). Why: Courts are more likely to scrutinize or reject these clauses if rights are heavily constrained. Correct approach: If limiting support, comply with independent counsel rule and ensure fairness.
- Mistake: Including unenforceable provisions (e.g. about child custody, weight, personal habits). Why: Those provisions are outside the court’s power or violate public policy. Correct approach: Stick to finance, property, debts, support, inheritance, investments, avoid lifestyle minutiae.
What You Can Achieve with a Proper Prenup
When drafted and executed correctly, a prenuptial agreement can provide:
- Clarity on separate vs. marital property. You can define which assets/debts remain individual and which become marital.
- Predictability in case of divorce. You reduce litigation risk by planning division rules ahead of time.
- Control over spousal support formulas. You may limit or waive support, if done properly.
- Protection of business interests, inheritance, investments. Especially relevant when one or both parties bring assets or family wealth.
- Reduced uncertainty and conflict. Financial transparency and negotiated terms can ease tension in marriages.
When a Court Might Disregard a Prenup
Learn more about the circumstances in which, can a California judge ignore a prenuptial agreement.
Even a well-drafted prenup can be set aside or ignored under certain circumstances. Some common reasons include:
- Evidence of fraud, duress, or undue influence at signing.
- The agreement is found to be unconscionable (extremely unfair) at the time of enforcement.
- Material changes in circumstances make the terms obsolete or unjust.
- Inadequate disclosure or failure to follow procedural rules (like the 7-day notice or independent counsel).
Frequently Asked Questions
Is a prenuptial agreement worth it if neither party is particularly wealthy?
Yes. A prenup is not just for the wealthy. It helps with transparency, defines expectations, and minimizes future conflicts even in modest financial circumstances.
Can a prenup in California include child support or custody terms?
No. Provisions regarding child support or child custody are unenforceable because courts retain authority to determine them based on the child’s best interests.
How long before the wedding should the prenup be signed?
The final version should be delivered at least 7 calendar days before signing; but practically, couples should negotiate months in advance to allow for revisions and review.
Can I change a prenup later on?
Yes. You can amend or revoke a prenup by creating a new written agreement signed by both parties, as long as it complies with procedural rules. See our detailed guide on how to amend or modify a prenuptial agreement in California for the steps and standards involved.
For reliable, enforceable prenuptial agreements in Hermosa Beach or throughout Los Angeles County, trust experienced guidance.
For help with prenuptial agreements in Hermosa Beach, contact Baghdaserians Law Group, Inc at (310) 953-4657
