Does a prenup have to be signed before the wedding?
Yes. Family Code section 1610(a) defines a premarital agreement as "an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage." Section 1613 adds that it becomes effective upon marriage. An agreement signed after the wedding is not a prenup. It is a marital property agreement, usually called a postnup, and it is reviewed under the rules that govern spouses.
What is the main difference between a prenup and a postnup?
Timing is the main difference, and timing decides which rules apply. A prenup falls under the Uniform Premarital Agreement Act. A postnup is signed by people who are already married, so it falls under Family Code section 721(b). That section says: "This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other." That duty is the reason a postnup is reviewed differently. It is explained further below.
What can a prenup or postnup actually cover in California?
Both agreements can change the property rights the Family Code would otherwise give the spouses. For prenups, Family Code section 1612(a) lists the subjects a couple may contract about, including:
- each person's rights in property whenever and wherever it was acquired
- the right to manage, control, sell or borrow against property
- what happens to property on separation, divorce, death or another event
- making a will or trust to carry out the agreement
- life insurance death benefits
- which state's law will be used to read the agreement
- other matters that do not violate public policy or a criminal statute
There are limits. A prenup cannot adversely affect a child's right to support. That rule, which applies to premarital agreements, is in section 1612(b). A spousal support provision is not enforceable if the person it is enforced against had no independent counsel when signing, or if the provision is unconscionable at the time of enforcement. That premarital agreement rule is in section 1612(c). Unconscionable means so one-sided that it shocks the conscience.
For spouses, Family Code section 1620 states the outer limit. Spouses cannot, by a contract with each other, change their legal relations except as to property, unless the law provides otherwise.
When is a prenuptial agreement unenforceable in California?
Family Code section 1615(a) gives two grounds on which a prenup is not enforceable. The person challenging it has to prove one of them.
The first is: "That party did not execute the agreement voluntarily."
The second applies only when all of the following are true. The agreement was unconscionable when signed. And, before signing, that person "was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party." In addition, that person did not waive further disclosure in writing and did not have, or reasonably could not have had, adequate knowledge of the other person's finances.
Under section 1615(b), "An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law." That means a judge decides it, not a jury.
Does the seven-day rule apply to prenuptial agreements in California?
Yes. Family Code section 1615(c) treats a prenup as not voluntary unless the court finds, in writing or on the record, a set of conditions. The seven-day period is one of them.
For agreements signed on or after January 1, 2020, the person must have had at least seven calendar days between first seeing the final agreement and signing it, whether or not that person had a lawyer. Nonsubstantive amendments that do not change the terms are not counted.
The court also looks at other things:
- whether the person had independent counsel, or waived counsel in a separate writing
- whether any unrepresented person received a written explanation of their rights
- whether there was any duress, fraud or undue influence
- whether both people had the capacity to sign
- any other factors the court considers relevant
The seven days are one piece of that larger voluntariness review.
Why is a postnuptial agreement held to a higher standard than a prenup?
The difference is that spouses are already fiduciaries to each other when they sign a postnup, and engaged couples are not yet bound that way. Family Code section 721(b) treats spouses like nonmarital business partners in their dealings with each other. That includes providing "true and full information of all things affecting any transaction that concerns the community property" when asked.
So a postnup is negotiated by two people who each owe the other the highest good faith and fair dealing. Neither may take unfair advantage of the other. A spouse weighing a postnup is not negotiating at arm's length, and the law does not treat it that way.
What is a transmutation, and how does it relate to a postnup?
A transmutation is a change in the character of property between spouses. Family Code section 850 allows married persons to:
- change community property into one spouse's separate property
- change one spouse's separate property into community property
- change one spouse's separate property into the other spouse's separate property
Under section 852(a), "A transmutation of real or personal property is not valid unless 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."
A postnup that relabels property has to meet that express-declaration standard. A transmutation of real property is also not effective against third parties without notice unless it is recorded, under section 852(b). Small personal gifts between spouses, such as jewelry that is not substantial in value, are excepted under section 852(c).
Can a postnup be used to fix something that was left out of a prenup?
Often, yes, through a written agreement. Under the premarital agreement rules, Family Code section 1614 provides that, after marriage, a premarital agreement "may be amended or revoked only by a written agreement signed by the parties."
Any new terms are made between spouses. That means the section 721 fiduciary duty applies to the negotiation. Any change in the character of property also has to meet the section 852 express-declaration rule. Whether a particular gap can be filled depends on what the original agreement says and what property is involved.
Do both spouses need separate attorneys to sign a prenup or postnup in California?
California's statutes on these agreements do not require separate attorneys for either agreement, but independent counsel carries real legal weight for a prenup. Under section 1615(c), having independent counsel is part of what the court looks for in finding a prenup voluntary. The other route is an express waiver of counsel in a separate writing, after being advised at least seven calendar days before signing. A spousal support provision in a premarital agreement also needs that independent counsel under section 1612(c).
For a postnup, these sections set no counsel rule. Independent review is one practical way each spouse can see the full picture the section 721 duty calls for.
Where are prenuptial and postnuptial agreement disputes heard in San Diego County?
When an agreement is disputed as part of a divorce or legal separation, the case is heard in the Superior Court of California, County of San Diego. The court assigns family cases to a division by ZIP code under its ZIP Code List (ADM-254). Most family law cases are filed in one of four divisions:
- 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
