Prenup Lawyer: Drafting and Reviewing California Premarital Agreements

What a California Premarital Agreement Can Cover

The starting point is Family Code section 1500: "The property rights of spouses prescribed by statute may be altered by a premarital agreement or other marital property agreement." Put plainly, California law sets default rules about who owns what in a marriage. A written agreement between the spouses can replace many of those defaults with rules the couple chooses. A premarital agreement, often called a prenup, is one made between two people who plan to marry. It takes effect only when they marry.

Family Code section 1612(a) lists what a premarital agreement may address. In the statute's terms, and in plain words:

1. "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 agreement can say who owns what. That covers property each partner owns now, property acquired later, and property held outside California.
2. The right to buy, sell, use, transfer, lease, mortgage, encumber, dispose of, or otherwise manage and control property. The agreement can decide who controls an asset, not just who owns it. For example, it can say who may sell or borrow against a particular property.
3. "The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event." The agreement can say what happens to property if the couple separates, if the marriage ends, if one spouse dies, or if some other stated event happens or fails to happen.
4. "The making of a will, trust, or other arrangement to carry out the provisions of the agreement." The spouses can promise each other that they will sign the documents needed to carry out the agreement's terms.
5. "The ownership rights in and disposition of the death benefit from a life insurance policy." The agreement can say who owns a policy's death benefit and who receives it.
6. "The choice of law governing the construction of the agreement." The agreement can name which state's law will be used to interpret it.
7. Any other matter, including the parties' personal rights and obligations, that does not violate public policy or a statute imposing a criminal penalty. This is a catch-all, and those two limits mark its edges.

This list goes well beyond divorce. Several items deal with death, with how property is managed while the couple is happily married, and with events that may never happen. A well-drafted premarital agreement works as a set of ground rules for the whole marriage. It is not only a plan for how the marriage might end.

Section 1612 also sets two limits. Under section 1612(b), a premarital agreement cannot adversely affect a child's right to support. Spousal support provisions are allowed, but they come with their own enforcement conditions in section 1612(c), discussed below.

The Seven-Day Rule and Independent Legal Counsel

Family Code section 1615(c)(1) contains the timing rule that shapes how a California prenup is prepared: "The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed." Independent legal counsel means a lawyer who represents only one partner. It does not mean one lawyer shared by the couple, and it does not mean the other partner's lawyer.

The seven-day rule is not a courtesy. Section 1615(a)(1) provides that a premarital agreement is not enforceable if the party challenging it proves they did not sign it voluntarily. Section 1615(c) then says that an agreement is deemed not to have been signed voluntarily unless the court finds, in writing or on the record, that several conditions were met. One condition is that the challenging party either had independent counsel at signing, or was advised to get counsel and then waived representation in a separate writing. That advisement must come at least seven calendar days before signing.

A second timing condition applies to agreements signed on or after January 1, 2020. The party must have had at least seven calendar days between first receiving the final agreement and signing it, whether or not that party has a lawyer. Changes that do not alter the terms of the agreement do not restart that period. Section 1615(c) also requires the court to find that the agreement and related writings were not signed under duress, fraud or undue influence, and that neither party lacked the capacity to agree. The court may also weigh any other factors it considers relevant.

Should both partners have a lawyer? The statute requires the advisement. It does not force anyone to hire a lawyer. Still, separate counsel for each partner is the standard practice, because it most directly satisfies the first condition the court must find. When a partner goes without a lawyer, section 1615(c)(3) adds more steps. That partner must be fully informed of the agreement's terms and basic effect, and of the rights being given up. That explanation must be put in writing and delivered before signing. The partner must also sign a document confirming they received it and naming who provided it. The partner must also be proficient in the language used for the agreement and the explanation.

Can a couple write their own prenup? Nothing in these sections prohibits it. The enforcement requirements of section 1615 apply no matter who drafts the document, though. A homemade agreement that misses the timing rules, the separate waiver or the written explanation leaves a gap a court may examine closely if the agreement is ever challenged. That is the practical reason lawyers are usually involved. The statute does not make an agreement automatically unenforceable without them. It does require the court to find specific facts before it treats the agreement as voluntary.

For couples planning a San Diego wedding, the timing rule often matters more than any other. Planning backward from the wedding date usually shows that the real deadline is the day the final draft must exist. The wedding day itself comes later.

How Premarital Agreements Interact with California Community Property

California is a community property state. Under its default rules, income earned and assets acquired by either spouse during the marriage are generally community property. Community property means property owned equally by both spouses. Property each person owned before marriage is generally their separate property. Section 1500 is what lets a couple change those defaults by agreement.

Because the defaults reach so far, couples in San Diego County commonly use a premarital agreement to address questions such as:

• Pre-marriage assets. Keeping a condo bought before the relationship, an investment account, or other premarital savings as one partner's separate property. The agreement can also address growth in value during the marriage.
• Earnings during marriage. Deciding whether each spouse's salary, bonuses or other compensation will be community property, as the default rules provide, or treated another way.
• A business or professional practice. Setting out how an interest one partner already owns, or later builds, will be characterized and handled. This includes who controls it during the marriage.
• Property received at death. Coordinating the agreement with a will, trust or life insurance designation, as sections 1612(a)(4) and (a)(5) permit.

No category of asset is automatically in or out of a premarital agreement. The statute lets the partners address property "whenever and wherever acquired or located," and the agreement says what they choose. That flexibility is also why careful drafting matters. An agreement that is vague about a business, or about money moving between accounts, can create the very dispute it was meant to prevent.

Spousal support is the subject with the most statutory conditions. Section 1612(c) provides that a spousal support provision, including a waiver of support, is not enforceable in two situations. The first is when the party against whom it is enforced did not have independent counsel when the agreement was signed. The second is when the provision is unconscionable, meaning severely one-sided, at the time someone seeks to enforce it. The statute adds that having counsel does not, on its own, make an otherwise unenforceable support provision enforceable. Section 1615(b) provides that unconscionability is decided by the court as a matter of law.

Couples often find this section of the conversation the hardest. It asks each of them to imagine circumstances neither wants. Drafting the agreement in plain terms tends to make it easier to discuss.

Where Premarital Agreement Disputes Are Filed in San Diego County

When a San Diego County marriage ends, a premarital agreement usually comes before a judge inside the divorce or legal separation case. One spouse may ask the court to enforce the agreement, or the other may raise a defense under section 1615. The Superior Court of California, County of San Diego assigns family law cases by ZIP code to one of four divisions, using the court's ZIP Code List (ADM-254).

• Central Division. Most family law cases from the ZIP codes ADM-254 assigns to the Central Division are filed at the Superior Court of California, County of San Diego, Central Courthouse, 1100 Union Street, San Diego, CA 92101.
• North County Division. Most family law cases from the ZIP codes ADM-254 assigns to this division are filed at the Superior Court of California, County of San Diego, North County Regional Center, 325 South Melrose Drive, Vista, CA 92081.
• East County Division. Most family law cases from the ZIP codes ADM-254 assigns to the East County Division are filed at the Superior Court of California, County of San Diego, East County Regional Center, 250 East Main Street, El Cajon, CA 92020.
• South County Division. Most family law cases from the ZIP codes ADM-254 assigns to the South County Division are filed at the Superior Court of California, County of San Diego, South County Regional Center, 500 3rd Avenue, Chula Vista, CA 91910.

These locations are context for where a dispute would be heard, not filing instructions. In any of the four courthouses, the judge applies the same California statutes: sections 1500, 1612 and 1615. The rules in this page do not change from San Diego to Vista to El Cajon to Chula Vista. What a judge in any division looks at is the record the couple created before the wedding. That record includes the dates, the advisements, the waivers and the drafts.

What to Look for When Choosing a Prenup Attorney

Each partner needs a separate lawyer to get the independent-counsel protection section 1615(c)(1) contemplates. Section 1612(c) also requires independent counsel before a spousal support provision can be enforced. So the search usually happens twice, once by each partner. A lawyer already representing one partner cannot serve as the other partner's independent counsel.

Credentials can be checked. The State Bar of California's Board of Legal Specialization certifies attorneys in family law, and a prospective client can confirm that certification, and any lawyer's license status, through the State Bar.

Useful questions to ask any lawyer under consideration include:

• How often do you draft or review premarital agreements specifically, as opposed to handling divorces generally?
• How do you handle the seven-day advisement and the seven-day period after the final agreement is presented? How are those dates documented?
• How does the agreement address spousal support, given section 1612(c)?
• Will the agreement and your explanations be written in plain language that both of us can follow?
• How will the agreement coordinate with any will, trust or life insurance arrangement it calls for?

The guidance on this site covers California law only. If a partner owns property elsewhere, or expects the couple to live in another state, that fact is worth raising with counsel early. A choice-of-law clause under section 1612(a)(6) is one of the provisions the agreement may contain.