Define: Prenup

A so-called “prenup” agreement (aka prenuptial,  antenuptial,or premarital agreement) is a written agreement between two future spouses.  

Why Should I Write a Prenup?

Prenups aren’t just for rich folks. A prenup can protect you from having to take responsibility for your spouse’s debts, for example. 
A prenup, can help you: 

• State how your assets should be distributed 
• Document property ownership
• Lay out the separate property that each person brought to the marriage 
• Determine the legal ownership of the property, assets and income that are acquired in marriage . 
• Make decisions about how you and your spouse’s finances should be handled. 

With no prenup, if divorce or death comes along, the distribution of your assets is in accordance with the divorce and probate statutes where you live or where you were married.

Prenups in California and the Current Marriage and Divorce Laws

The legislation in the Golden State dictates the rights and obligations of married people. Nonetheless, some marital rights can be renegotiated and altered by agreement. Spouses can make decisions in advance of getting married as to the terms of their property shares during marriage or, if it should come to it, divorce.  

Terms outlining what to do upon the death of a spouse can also be dictated in the contract. 

For sure, prenups in California and the current marriage and divorce laws often diverge. Agreed upon terms can be different from the default procedure under the state legislation.  

How Can I Know if My Prenup is Valid or Not?

A prenup is only valid if: 

1. The agreement is in writing, 
2. It is voluntarily signed by both parties
3. The wedding has taken place.

(In the case of domestic partnerships, the registration date  is just like the date of marriage, so your prenup would become valid on the registration date.)

If, by chance, a marriage is annulled, your prenup might turn out to be impossible to enforce, or in some cases, enforcement may only be possible to a minimal measure.
It is worthy of note that due to the intimate nature of the husband-wife relationship, simply mentioning or considering a prenup might raise the suspicion of undue influence. Such a presumption could be beneficial to either party who may later want to challenge the validity of the prenup in court.

The California Code provides that the intimate, fiduciary connection between spouses “imposes a duty of the highest good faith and fair dealing on each spouse.” 

Family courts are empowered to sanction a violation of fiduciary obligation in a divorce by awarding the whole value of an undisclosed asset to the spouse that was deceived about it. 

The Limitations of Prenups

There are some important limitations to the power of a prenup:

• The Family Code in California states that “[t]he right of a child to [receive] support may not be adversely affected by a premarital agreement.” 
• A court of law will only enforce clauses designed to limit spousal support if the spouse whose rights have been diminished had the opportunity to get their own attorney at the time they signed.
• If a judge believes that a waiver of spousal support is unconscionable, he or she can decide not to uphold it and award support. 
• Any agreement that indicates that persons must commit crimes or break laws cannot be valid. 
• Certain life-style clauses, like clauses that set limits on visits from in-laws or that discuss how often you have sex usually are not enforceable by courts.

How to Write a Prenup Without a Lawyer

Much like with any contract, you can write a prenup without a lawyer.  There are templates around that you can use to get the job done.  That said, what comes into question is whether or not you can write a prenup that will be enforceable under the laws of the jurisdiction you’re in. 

A contract must contain these elements: 

1. promise/s, 
2. consideration, 
3. and signatures
4. witness or notary in some states. 

Different jurisdictions have their specific statutory and case law related to what is and is not allowed in a prenup, and an experienced attorney comes with the advantage of a deep understanding of what these are and how to apply them.