Prenup Records Checklist

Each person needs a clear record of their property and financial obligations, because Family Code section 1615 ties enforceability partly to whether a "fair, reasonable, and full disclosure of the property or financial obligations of the other party" was provided. "Property" is broad here. Family Code section 1610(b) defines it as any interest, present or future, legal or equitable, vested or contingent, in real or personal property, "including income and earnings." So the information covers what each partner owns, earns, owes and may receive later.

A working checklist usually covers these categories:

• Bank, savings and brokerage account statements
• Deeds, mortgage statements and any other real estate records
• Retirement, pension and 401(k) or IRA account summaries
• Business ownership papers, such as operating agreements, shareholder records or partnership agreements
• Stock options, restricted stock or other equity grants
• Vehicle titles and loan statements
• Life insurance policies, especially those with cash value
• Recent tax returns and pay records showing income and earnings
• Credit card, student loan, personal loan and other debt statements
• Existing court orders or agreements that create payment obligations

None of these items is named in the statute itself. They are the ordinary paper trail that lets each partner document what the disclosure rule calls for.

Every asset of real value belongs on the list: homes and land, financial accounts, retirement accounts, vehicles, business interests, equity in a company and valuable personal property. Because section 1610(b) reaches future and contingent interests, items like unvested stock or an expected interest in a family trust are part of the picture too.

These lists are usually attached to the agreement as schedules, one for each partner. A missing asset is the kind of gap that can later support an argument that the disclosure fell short.

There are two main limits. First, a prenup cannot hurt a child's right to support. Family Code section 1612(b) says "the right of a child to support may not be adversely affected by a premarital agreement."

Second, spousal support terms are restricted. Under section 1612(c), a spousal support provision, including a waiver, 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.

Beyond those two limits, section 1612(a)(7) allows other matters only if they do not violate public policy or a statute imposing a criminal penalty.

Section 1612(a) lists the subjects partners may contract about, including:

• Property rights, wherever and whenever acquired
• How property is managed and controlled
• How property is divided on separation, divorce or death
• Wills or trusts to carry out the agreement
• Life insurance death benefits
• Which state's law governs the agreement

Family Code section 1500 confirms that the property rights spouses would otherwise have by statute "may be altered by a premarital agreement or other marital property agreement." This is why the records matter: the agreement can only sensibly address property both partners can actually see.

A prenup is a written contract. Family Code section 1611 requires it to be "in writing and signed by both parties." It is enforceable without consideration, meaning neither partner has to give the other anything in exchange for it to count.

Most agreements identify both partners, state the planned marriage, set out the terms about property and support, and attach disclosure schedules listing each person's assets, debts and income. Under section 1613, the agreement takes effect when the marriage does.

Section 1611 requires only a writing signed by both parties. The premarital agreement sections, Family Code sections 1600 through 1617 (the Uniform Premarital Agreement Act), do not mention notarization.

Some couples have signatures notarized anyway as a practical record of who signed and when. The enforceability rules in section 1615 turn on voluntariness, disclosure, counsel and timing, not on a notary stamp.

Under Family Code section 1615(a), a prenup is not enforceable if the challenging party proves either of two things. The first is: "That party did not execute the agreement voluntarily." The second is that the agreement was unconscionable (so one-sided as to be unfair) when signed, and, before signing, all three of these applied to that party: "That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party"; that party did not voluntarily and expressly waive further disclosure in writing; and that party did not have, or reasonably could not have had, adequate knowledge of the other party's property or obligations. Section 1615(b) adds: "An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law."

There are actually two seven-day timelines in section 1615(c).

The first concerns the final agreement. For an agreement signed on or after January 1, 2020, section 1615(c)(2)(B) requires at least seven calendar days between the time a party was first presented with the final agreement and the time it was signed, whether or not that party has a lawyer.

The second concerns legal advice. Under section 1615(c)(1), an advisement to seek independent legal counsel must come at least seven calendar days before the final agreement is signed.

If the court does not find these and the other section 1615(c) conditions in writing or on the record, the agreement is deemed not voluntary. Nonsubstantive amendments that do not change the terms do not restart the clock.

The statute sets no deadline measured from the wedding date. Its timing rules run from when the final agreement is presented and when the advisement about counsel is given.

In practice, gathering records, exchanging disclosures, reviewing drafts and then waiting seven days after the final version all take time. Couples who start a few months out tend to leave room for that sequence without signing under pressure. That matters because section 1615(c)(4) asks the court to find the agreement was not signed under duress, fraud or undue influence.

Nothing in sections 1600 through 1617 requires a lawyer to write the agreement, but going without one makes the voluntariness rules harder to meet:

• Under section 1615(c)(1), the court looks for each party to have had independent legal counsel when signing or, after being advised to get counsel, to have expressly waived it in a separate writing.
• Under section 1615(c)(3), an unrepresented party must be fully informed in writing of the agreement's terms and the rights being given up, be proficient in the language used, and sign a document saying who gave that information.
• Under section 1612(c), a spousal support term does not hold against a party who had no independent counsel at signing.

Yes, but only in writing. Family Code section 1614 says that after marriage a premarital agreement "may be amended or revoked only by a written agreement signed by the parties," and the change is enforceable without consideration. If an asset was left off the original schedules or circumstances have changed, a signed written amendment is the route the statute provides.

When a prenup is raised in a divorce or legal separation, it is decided in the Superior Court of California, County of San Diego, in the family law division assigned to the case by the court's 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

In any of them, the judge applies the same section 1615 tests, which is why the disclosure records gathered now become the evidence later. Under section 1617, any statute of limitations on a claim under the agreement is paused during the marriage, though defenses like laches and estoppel remain available.

Each partner generally has their own independent counsel, meaning a lawyer who represents only that partner. That is what section 1615(c)(1) and section 1612(c) look for. One resource is the lawyer referral service run by the San Diego County Bar Association. San Diego Family Law Advocates covers California law only, which matches the law a San Diego court applies to a California premarital agreement.