What a Prenup Actually Does to a Divorce in Los Angeles and Orange County – Part 1

It is no longer uncommon for couples entering a divorce proceeding to have a prenuptial agreement that they signed before the marriage. Once a tool for the ultra-rich, it is now often used by couples with a disparity in wealth or property when they are going to wed.

Two reasons for the increase in the number of prenuptials are:

1. Couples are marrying late in life (even first marriages), and the two individuals have spent years in the workplace acquiring assets and pensions. In 1956, the average age to marry was between 20 and 22 years old. Today, that age has jumped to nearly 32 in California.
2. It is now deemed more acceptable for a couple to have a prenuptial agreement. A prenuptial agreement is no longer viewed as a sign that one party expects a divorce. It’s now more often seen as a prudent step couples take to protect against the unexpected, should a divorce happen.

This two-part blog will discuss the impact and reality of a prenuptial agreement on divorce proceedings in California, specifically in Los Angeles and Orange County.

In part one of this series, we will discuss the scope and enforceability of prenuptial agreements. In part two, we will discuss the mechanics that evolve when a prenup is part of a divorce proceeding in both Los Angeles and Orange County.

Disclaimer: This blog constitutes general information and is not legal advice. This platform is not a law firm, and its employees, agents, or representatives are not acting as your attorney. The content and tools offered are intended to assist individuals in understanding and navigating the divorce process without an attorney but are not a substitute for advice from a qualified attorney licensed in your jurisdiction. To allow you to independently verify information, wherever a fact appears below, you'll find a link to the statute, court rule, or source behind it.

Impact of a Prenuptial Agreement

In reality, a prenuptial agreement either makes the divorce immensely simpler because some of the points that are often the most litigated have already been ironed out before the marriage, or it becomes the main element of dispute. If there are questions about validity or whether the prenup was properly reviewed and considered, the agreement itself becomes the fight. All of this turns on events that occurred years before the divorce itself.

What is the Prenuptial Agreement Allowed to Decide?

The answer to this question can be found in the Family Code section 1612, which sets the scope and limits of what may be included in a prenuptial agreement:

Parties to a premarital agreement may contract with respect to all the following:

(1) The rights and obligations of each of the parties of any property owned by either or both of them.

(2) The right to buy, sell, encumber and otherwise control property; the disposition of property on separation,

(3) The disposition of property upon separation, marital dissolution, or death.

(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.

(5) Ownership of a life insurance death benefit policy.

(6) The choice of law governing the construction of the agreement.

(7) Any other matter not in violation of public policy or a statute imposing a criminal penalty.

What Cannot Be Included in a California Prenuptial Agreement?

California sets forth specific items that are forbidden to be included in ANY prenuptial agreement even if both parties wish for them to be included. The forbidden areas are:

• Child Custody and Visitation: Courts decide custody based on the best interests of the child at the time of a separation, so future arrangements cannot be predetermined.
• Child Support: Parents cannot contract away or limit a child's right to adequate financial support under California Family Code Section 1612(c).
• Non-Financial Personal Demands: Lifestyle rules, household chores, weight requirements, or decisions about who to spend holidays with are not enforceable.
• Illegal Acts: Any requirement or incentive to break the law or violate public policy is completely void.
• Provisions Encouraging Divorce: Clauses that act as a financial incentive or reward to trigger a divorce will not be upheld.
• Unconscionable Spousal Support Waivers: While alimony can be addressed, a waiver of spousal support may be thrown out if it is unconscionable or if the receiving party did not have independent legal representation. The issue of unconscionability means that the deal was so one-sided or heavy-handed that it is not enforceable. The test for being unconscionable is looked at both at the time of signing and at the time of the divorce.

What are the Requirements for Creating a Valid Prenuptial?

Like any valid contract, in California there must be an offer and acceptance of the terms and a meeting of the minds. This latter requirement is often the matter in dispute. In essence, it means that there is a mutual understanding, agreement, or shared opinion between both individuals. That they are "on the same page" and have the same expectations and belief in what they are agreeing to in their prenup.

The rules setting forth what is required for a valid prenup are designed to ensure that the soon-to-be wed parties have the same understanding and belief regarding the terms and the ultimate outcome.

The provisions that California law sets forth should be viewed as the bar minimum, and to ensure enforceability, the parties often exceed these requirements because California law allows the court to consider any factors the court deems relevant when considering the validity of any prenuptial agreement.

The core legal requirements are:

• Written Document: Oral prenuptial agreements are not legally binding; the entire contract must be documented in writing.
• Voluntary Signatures: Both individuals must sign the agreement willingly, free from coercion, fraud, or duress
• Full Financial Disclosure: Each partner must provide a complete, honest accounting of all assets, property, income, and debts. Hiding assets can invalidate the agreement.
• Independent Legal Counsel: Both parties generally need separate, independent attorneys to represent their individual interests— However, If one party does not wish to engage separate counsel, it is incumbent that you can demonstrate: that the non-represented party
• was fully informed of the terms and basic effect of the agreement
• was fully informed as to the rights and obligations the party was giving up by signing the agreement
• They were proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written.
• The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. This must be a separate agreement and not bound in the prenuptial agreement.
• The 7-Day Rule - The receiving spouse must have at least seven days to review the final agreement before signing it.

The enforceability gauntlet

If you find yourself a party to a divorce which involves a prenuptial agreement and that agreement is in dispute, the Court will look to Section 1615 to determine if the agreement is unenforceable. This includes all the elements we just discussed.

While some of these provisions seem pretty straightforward (e.g., written document, voluntarily signed by both parties). Other items can be more problematic (e.g., full disclosure, conscionability of the terms).

A well-documented agreement should be able to demonstrate that full disclosure was made by the listing of the documents. However, unconscionability is a more ambiguous criterion. Unconscionability is decided by the judge as a matter of law. This means that the judge, after reviewing all the facts in the case, makes the final determination of whether the agreement that was generated years prior is enforceable.

This makes it imperative that when drafting the prenuptial agreement you view it through the lens of a judge who will consider:

• the agreement was not signed under duress, fraud or undue influence, and neither party lacked capacity;
• whether the terms were so one-sided it is fundamentally unfair.
• any other factors the court deems relevant.

Summary:

Prenuptial agreements can streamline and make a divorce a less contentious experience if prepared properly and in accordance with the Family Law Code Sections 1610 – 1617. If you have failed to meet the standards and conditions of this law, the reality is that all the planning was for naught.

In the second part of this blog, we will examine the mechanics in Los Angeles and Orange County Family Courts where a prenuptial agreement is involved.

And again: this article is general information about California law and Los Angeles County procedure, not legal advice for your situation.

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