There are some special procedures that you should be aware of for ensuring that your agreement is enforceable against third parties.

1. Real Property. Under bona fide purchaser rules, a transmutation of real property is not effective regarding third parties without notice of the transmutation unless it is recorded. Thus, a premarital agreement affecting real property rights and any deed executed in accordance with the agreement should be recorded with the County Recorder to provide constructive notice to third parties.

2. Creditors. A premarital agreement may also protect the property of one spouse from the creditors of the other on debts incurred by the other during marriage. The California Supreme Court has suggested that, as long as creditors are given proper notice, a premarital agreement that provides that each spouse’s earnings and acquisitions during marriage will be his or her separate property may preclude creditors of one spouse from taking the earnings and acquisitions of the other because those earnings and acquisitions would not be community property.

Proper notice probably requires, however, that the creditor be informed about the agreement at or before the time a debt is incurred.

Retention of Documents. In case your premarital agreement is ever contested, it is important for you to keep a copy of all correspondence, especially correspondence directed at your fiance, and anything he or she signs.

Divorce Helpline can assist with any questions regarding how to render prenuptials enforceable against 3rd parties; we have over twenty-years of experience in drafting prenuptial agreements.  For details on prenuptial agreements check out our articles on the impact of prenuptial agreements on nuptials, common provisions, legal requirements, and what should not be included.

The following are some provisions which should not, or in some cases, may not be included.

1. Provisions Regulating or Controlling Personal Aspects of Marriage.
Inclusion of provisions in a premarital agreement that attempt to regulate or control personal aspects of the parties’ marriage is very strongly not recommended. Beyond the reluctance of courts to regulate such matters generally, case law has held that contracts purporting to alter the legal incidents of marriage are void and unenforceable as against public policy.

Avoid including in the agreement any provisions that relate to religious practices or instruction, particularly with respect to children, as well as provisions that attempt to regulate or punish personal behavior, or that purport to require or reward personal services between the parties.
These sorts of provisions that have been struck down by courts in the past
include:

a. property forfeiture provision for use of illegal drugs was invalid;
b. contract imposing damages of $50,000 on spouse who is unfaithful is unenforceable as against public policy of no-fault divorce;
c. contract by which husband promised to transfer certain property to wife in exchange for in-home care of him for duration of illness;
d. services as nurse and housekeeper;
e. nursing services and companionship.

2. Duty of Support During Marriage. By statute, each spouse contracts towards the other a duty of support during an ongoing marriage, and it does not appear that this statutory duty may be waived.

3. Agreements That Promote Dissolution or Reward a Spouse Upon Dissolution. Agreements that promote dissolution are prohibited. These are usually provisions that provide a benefit for filing dissolution, e.g., an agreement promotes dissolution if it provides for a transfer of property of substantial value only in the event of dissolution.

4. Child Custody or Child Support. To the extent that they purport to dictate child custody orders, premarital agreements are not binding on the courts.

5. Waiver of Joint and Survivor Annuity or Survivor Benefits Under Private Retirement Plan Probably Unenforceable. It appears that the rights of a nonparticipant spouse to receive a joint and survivor annuity or survivor benefits under a private retirement plan following the participant spouse’s death, as distinguished from other retirement benefits, cannot be waived in a premarital agreement.

Divorce Helpline can assist with any questions regarding what is enforceable in California prenuptials; we have over twenty-years of experience in drafting prenuptial agreements.  For details on prenuptial agreements check out our articles on the impact of prenuptial agreements on nuptials, common provisions, and legal requirements.

California has strict and detailed requirements for an enforceable prenuptial agreement include the following:

1. Both parties must be independently represented by separate attorneys, unless a spouse is advised to seek legal representation and waives hiring an attorney in a separate written instrument.
2. Both parties must have at least seven (7) calendar days from the time they are first presented with the agreement to study and consider it before signing.
3. If one of the parties is not represented by an attorney (and has signed a separate written waiver) he or she must be fully informed in writing, prior to signing, of the terms and basic effect of the agreement as well as the rights and obligations he or she is giving up by signing the agreement.

In the preparation of a premarital agreement each party is required to prepare and disclosure all of their assets and liabilities to the other party.

An expensive aspect of prenuptial can arise if a fiance doesn’t retain counsel to explain the premarital agreement to him or her.  In that event the attorney will have to draft a fairly extensive letter fully informing the fiance of the terms and basis effect of the premarital and the rights and obligations he or she is giving up.  This letter is involved and expensive—it may be less costly to pay an independent attorney to review the agreement and orally explain it to him or her.

Divorce Helpline can assist with any questions regarding prenuptial legal requirements or general questions. For details on prenuptial agreements check out our articles on the impact of prenuptial agreements on nuptials, common provisions, and what is enforceable.

I wanted to briefly overview the common provisions often found in premarital agreements.

A “premarital agreement” is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. A premarital agreement shall be in writing and signed by both parties voluntarily and not under duress, fraud or undue influence.

Common Provisions.  A premarital agreement is designed to protect the rights of each party.  Some common provisions are:

1. Provisions precluding the creation of community property. A premarital agreement may be used to preclude the creation of community property interests, either entirely or with specified exceptions.

E.g., under a general agreement designed to preclude the creation of community property, each party’s earnings during marriage and before separation, and the value of their efforts during marriage, and any items acquired by the party with those earnings, can be his or her separate property.  It can strengthen such a provision to designate one joint account as the only place where community funds will be kept—i.e. by funding any money into such an account, it becomes community property.

Another common provision is that any debt or asset acquired in one spouse’s name is the separate property of that spouse.

2. Provisions to maintain the character of separate property. A premarital agreement may be used to ensure that a spouse’s separate property owned before marriage remains separate after marriage, regardless of any developments (e.g., any increase in value attributable to community payments or effort) that might otherwise result in a community interest in the property.

You may wish to have a provision that states that no community interest in a spouse’s separate property, and no right of reimbursement to the community or to a spouse, may be created unless it is created in a writing, and that absent a writing any contribution of time, money or effort to the benefit of a spouse’s separate property is deemed a gift.

3. Provisions to waive or limit spousal support. Prospective spouses can enter into provisions waiving or modifying spousal support rights subject to the following restrictions.

Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.

4. Provisions for transmuting the character of existing property. By means of a premarital agreement, parties also may contract to transmute the character of property from

Community property to separate property;  Separate property of one or both parties to community property; or  Separate property of one party to the separate property of the other party.

At Divorce Helpline we are here to make the legal side of your marriage simple and clear and we offer prenuptial services. Check out our blog on the impact of prenuptial agreements, legal requirements, and what is enforceable.

Prenuptial, or premarital agreements, can be very difficult to draft, negotiate and implement.  The most obvious problem is that prenuptial agreements are held to high legal review standards for voluntariness (you weren’t coerced into signing, even emotionally), and knowledge (you understood the legal effect of what you signed).  So there are safeguards that have to be put in place to create an enforceable document.

Unfortunately, this process takes place between two individuals who are probably deeply in love and delighted about their upcoming nuptials.  The bottom line is, the required t’s to cross and i’s to dot in the process of negotiating and drafting a prenuptial can have quite a dampening effect on the process of the marriage.

Further, prenuptials often require provisions that go into branching conditional alternatives–e.g, if this happens, then this rule applies, but if that occurs, then…  There are some similarities to estate planning, in that you have to try to anticipate all of the things that could happen.

The result of this is that a seemingly simple list from a prenuptial client can spawn thirty-pages of prenuptial text, for reasons that may not be immediately apparent to the marrying couple.  This can add further strain.

At Divorce Helpline, we have over twenty-years of experience in drafting prenuptial agreements.  We strive to make the process as pain-free as possible, while at the same time creating a document that will protect your agreements if that ever becomes necessary.   For details on prenuptial agreements check out our articles on common provisions, legal requirements, and what is enforceable.