A prenuptial agreement is a legal contract that can be used to limit the transfer of assets or income to a former spouse, should a couple divorce.

The agreement is made before the marriage and is interpreted by the courts using the rules of contract law. The California legislature has created detailed requirements for the creation of a prenuptial agreement.

When is a prenuptial agreement invalid in California? The basic requirements of a prenuptial agreement are established in the California Family Code.

Full Disclosure

To be valid, a prenuptial agreement must be made with full disclosure of all assets, liabilities and income.

In addition, the agreement must be voluntary. The review by the courts is very fact intensive, and there are many open questions as to how a court will view some elements of a particular agreement.

Factors a Court Must Find for Agreement to be Valid

California Family Code section 1615 lays out factors a court must find in order to decide that an agreement was entered into voluntarily, including:

• The party against whom enforcement is sought was represented by independent legal counsel at the time the agreement was signed, or after being advised to seek independent legal counsel, the party expressly waived, in a separate writing, representation by independent legal counsel.
• The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
• The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written. In addition, the unrepresented party executed a document declaring that he or she received the information required by this paragraph and indicating who provided the information.
• The agreement and the writings were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
• Any other factors the court deems relevant.

The legislature has declared that child support is off-limits for prenuptial agreements, as child support may not be "adversely affected" by a premarital agreement.

The California Family Code lists elements that must be present for a prenuptial agreement to be valid. An agreement may be found invalid if those elements are not established. Therefore, it is of the utmost importance that an agreement is carefully drafted.

If you have substantial assets or income, and especially if you have children from a prior marriage, a prenuptial agreement could be an important way to protect your potential heirs. Speaking with an experienced family law attorney is a good place to start. A lawyer can review your situation and provide advice on how a prenuptial agreement can work for you.