An Out-of-State Prenup in a California Divorce

What California Law Says About Premarital Agreements

Family Code section 1600 names California's framework the Uniform Premarital Agreement Act. It is codified at Family Code sections 1600 through 1617, and it is the body of law a judge of the San Diego Superior Court works from when a prenup comes up in a divorce or legal separation.

The Act defines its subject narrowly. Under Family Code section 1610, a premarital agreement is "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." Section 1613 adds that the agreement "becomes effective upon marriage," and section 1611 says it "shall be in writing and signed by both parties."

What the parties may agree on is set out in Family Code section 1612(a). The list includes:

• "The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located."
• The right to buy, sell, use, transfer, manage and control property, along with related rights such as leasing, mortgaging or encumbering it.
• "The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event."
• "The making of a will, trust, or other arrangement to carry out the provisions of the agreement."
• "The ownership rights in and disposition of the death benefit from a life insurance policy."
• "The choice of law governing the construction of the agreement."
• "Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty."

For someone whose life has crossed state lines, the phrase "whenever and wherever acquired or located" is worth noticing. It means California's law expects that a couple may own property in more than one place, so a house or account in the state where the agreement was signed is not outside its reach simply because of where it sits. The choice-of-law item, section 1612(a)(6), is where every question about an agreement signed in another state begins.

The Choice-of-Law Clause: What It Does and What It Doesn't Do

Section 1612(a)(6) lets the parties pick "the choice of law governing the construction of the agreement." A choice-of-law clause is a sentence in the contract saying which state's law applies to it, for example, "This agreement shall be governed by the laws of New York."

When a prenup contains a clause like that, a California court may look to the named state's law to interpret the agreement's terms. If the agreement uses a phrase such as "marital property" or "separate assets," the named state's law may shape what those words mean.

The key word in the statute is construction. Construction means interpreting the agreement: working out what its words mean and how its terms fit together. Enforceability is a different question, namely whether the agreement is valid and will be upheld at all. Section 1612(a)(6) speaks only to construction. Nothing in its text extends the clause to the question of whether the agreement can be enforced.

Put plainly, the clause tells the court how to read the agreement's words. It does not, by the terms of section 1612, tell a court to set aside California's own tests for whether a premarital agreement is valid. Those tests sit in Family Code section 1615, covered in the next section. Exactly how a court weighs the named state's law against California's rules in a particular case depends on the agreement and the facts.

If the agreement contains no choice-of-law clause, or one so vague that it is hard to tell what it covers, the parties never used the option section 1612 gives them. That gap can become its own point of dispute.

How California Decides Whether an Out-of-State Prenup Is Enforceable

Family Code section 1615 sets the grounds on which a premarital agreement is not enforceable under California's Act. The burden is on the party resisting the agreement, who must prove one of two things.

The first is that the party "did not execute the agreement voluntarily." The second has several parts. The agreement must have been unconscionable when it was signed, and before signing, all three of the following must have applied to that party: no "fair, reasonable, and full disclosure of the property or financial obligations of the other party"; no voluntary, express written waiver of disclosure beyond what was given; and no adequate knowledge, actual or reasonably available, of the other party's finances. Unconscionable means so one-sided that it shocks the conscience. Under section 1615(b), unconscionability is decided by the court "as a matter of law."

Voluntariness has its own detailed definition in section 1615(c). The statute says an agreement is deemed not executed voluntarily "unless the court finds in writing or on the record all of the following." In summary, those findings are:

• The party was represented by independent legal counsel at signing, or, after being advised to seek counsel, "expressly waived, in a separate writing, representation by independent legal counsel." That advisement must come "at least seven calendar days before the final agreement is signed."
• For an agreement signed on or after January 1, 2020, the party "had not less than seven calendar days between the time that party was first presented with the final agreement and the time the agreement was signed, regardless of whether the party is represented by legal counsel." Agreements signed between January 1, 2002, and January 1, 2020, have a similar seven-day rule tied to presentation of the final agreement and the advice to seek counsel.
• An unrepresented party was fully informed, in writing, of the agreement's terms and basic effect and the rights being given up, was proficient in the language used, and signed a document confirming that information was received and who provided it.
• Nothing was signed under duress, fraud or undue influence, and neither party lacked capacity.
• "Any other factors the court deems relevant."

In everyday terms, the court is looking back at the days and weeks before the signature: who had a lawyer, how much time passed, what was explained and in what language, and whether anyone was pressured. For a person holding an agreement signed years ago, the questions often come down to dates and paperwork from that time.

These are California requirements. Many agreements signed elsewhere were drafted to satisfy a different state's rules, which may not have included a seven-day period or a written advisement about counsel. When such an agreement surfaces in a San Diego proceeding, its signing history can be measured against section 1615(c), and a gap may give rise to a challenge even though the agreement was considered sound where it was signed.

Spousal support terms carry an additional, separate condition under section 1612(c), discussed next. For an out-of-state agreement, that condition is often the most exposed part of the document.

What the Agreement Covers — and What California Will Not Honor

The list in section 1612(a), set out above, is broad. Two subdivisions of the same section, though, place firm limits on any premarital agreement.

Section 1612(b) is short: "The right of a child to support may not be adversely affected by a premarital agreement." Whatever an agreement says about money between the spouses, it cannot reduce what a child is owed.

Section 1612(c) addresses spousal support, meaning payments one spouse makes to the other after separation. Its text reads: "Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement."

Two features matter for an agreement from another state. First, this rule offers no written-waiver alternative for counsel, unlike section 1615(c). Second, fairness is measured "at the time of enforcement," which may be many years after signing. The statute also says counsel alone does not cure a provision that is otherwise unenforceable.

For someone reading an old agreement in a new state, this can be unsettling. An agreement that was entirely valid where it was signed may still contain provisions, especially spousal support terms, that a San Diego court will not enforce because California's independent-counsel rule was not met. The rest of the agreement does not necessarily fall with it; each provision is examined on its own terms.

Where a Prenup Dispute Is Heard in San Diego County

A question about whether a prenup is enforceable usually comes up inside a divorce or legal separation case filed in the Superior Court of California, County of San Diego. There is generally no separate "prenup court"; the agreement is raised and decided within the family law case.

The San Diego Superior Court assigns family law cases to one of four divisions by ZIP code, using the court's ZIP Code List (ADM-254). Most family law cases are filed in the division the list assigns to their ZIP code:

• Central Division — Central Courthouse, 1100 Union Street, San Diego, CA 92101
• North County Division — North County Regional Center, 325 South Melrose Drive, Vista, CA 92081
• East County Division — East County Regional Center, 250 East Main Street, El Cajon, CA 92020
• South County Division — South County Regional Center, 500 3rd Avenue, Chula Vista, CA 91910

Wherever the case is filed, the same California statutes apply. The division determines which courthouse hears the case, not which law governs the agreement.

Common Reasons an Out-of-State Prenup Faces a Challenge in California

Certain fact patterns come up again and again when an agreement signed elsewhere is presented in a California case. Each one is a factual question the court examines, not an automatic result.

No independent counsel at signing. If one party had no lawyer of their own and signed no separate written waiver after a timely advisement, section 1615(c) can become a contested issue. The state where the agreement was signed may not have asked for either.

No seven-day period. California counts calendar days between presentation of the final agreement and signing. An agreement handed over and signed the same week, or the week of the wedding, may draw a voluntariness challenge.

A spousal support waiver without counsel. Because section 1612(c) ties enforceability of support terms to independent counsel, a waiver signed by an unrepresented party is a frequent point of dispute, as is a provision argued to be unconscionable today.

Thin or missing financial disclosure. Section 1615(a)(2) links unconscionability to the absence of fair disclosure, the absence of a written waiver of further disclosure, and the absence of adequate knowledge. Missing schedules of assets and debts can put this in play.

A missing or unclear choice-of-law clause. Without a clear clause under section 1612(a)(6), the parties may disagree about which state's law should guide how the terms are read.

For many people this list lands close to home, because the details of a signing that happened long ago are hard to recall. That is why the paperwork from that time matters.

What to Do If Your Prenup Was Signed in Another State

A party reviewing an out-of-state prenup typically starts by gathering the signed agreement itself, ideally the original, together with every exhibit, schedule and financial disclosure attached to it. Disclosure schedules often decide whether section 1615(a)(2) is even in question.

The next step is usually to read the agreement for a choice-of-law clause and note exactly which state it names and whether it refers to how the agreement is construed, interpreted or governed.

It also helps to reconstruct the signing. Did each person have a separate lawyer? If not, is there a written waiver of counsel? When was the final version first handed over, and when was it signed? Emails, drafts and lawyers' letters from that period can answer these questions.

Finally, a reader typically notes whether the agreement contains spousal support terms, including any waiver, since section 1612(c) applies its own independent-counsel condition to them.

This is information-gathering, not a legal conclusion. The statutes explain what a California court examines. How those tests apply to one particular agreement is a question for a consultation with an attorney who has read it.