Are prenups legally binding? Yes—and not always.

On the one hand, a prenuptial agreement is a legally binding contract between spouses. It’s signed, notarized, and utilized as a north star for finances and family planning in your marriage.

On the other hand, a prenup may be invalidated in a court of law if it doesn’t follow all the required stipulations.

Additionally, in California, a prenup isn’t necessarily legally binding upon signing but upon the court making a legal determination of its validity on the record during a divorce proceeding.

It may sound complicated, but it’s pretty simple: follow all the rules and protocols, and your prenuptial agreement will be legally binding.

Let’s review how prenups are handled in California court to illustrate how this works.

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How Does The Court Review Prenups in CA?

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During a divorce proceeding in California, one of the first steps is to determine if there’s a valid prenup for review. Since there is a presumption that a prenuptial agreement is signed involuntarily, it requires the parties’ agreement or a court order making specific findings, including that the agreement was signed voluntarily (among other factors set forth in Family Code section 1615(c)(1)(2)).

In the recent case of Last v. Superior Ct. in 2023, the court ruled that a prenuptial agreement is only binding when the court makes specific findings pursuant to CA Family Code section 1615(c)(1)(2) regarding the validity of the prenup during divorce proceedings or if the parties agree that the prenup is valid. Since those findings had not been made (and were never requested to be made) in this case, the court found that the wife had a right to request temporary spousal support during the divorce proceedings even though she waived that right in the prenuptial agreement. That being said, if and when the court finds the prenuptial agreement to be valid, the court ordered that the wife may need to pay back any spousal support she may receive.

On the other hand, if the parties do not agree that the prenup is valid, one party must file a motion immediately to bifurcate (separate out) the issue of the prenup. The court will then hold a separate trial to determine if the prenup is valid.

In California, the court reviews prenuptial agreements under the guidelines established by the Uniform Premarital Agreement Act (UPAA).

For a prenuptial agreement to be considered valid and enforceable, it must meet several key criteria pursuant to CA Family Code section 1615(c)(1)(2).

First, it must be in writing and signed by both parties.

Second, both parties must enter into the agreement voluntarily, without coercion, duress, or undue influence.

Third, it must be executed before the marriage, and giveg both parties adequate time to consider its terms and seek counsel of an attorney.

Full and fair disclosure of each party’s assets, liabilities, and income is crucial; failure to disclose pertinent financial information can render the agreement invalid. Further, both parties should have had access to independent legal counsel or expressly waived this right in writing.

The court will likely uphold the prenuptial agreement if these conditions are met. However, the court may deem the agreement unenforceable if any of these conditions are lacking.

Spousal Support: Not Always Binding

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Another exception to the rule is for spousal support provisions. In California, the conscionability or fairness, of spousal support provisions in a prenup are measured at the time of divorce. That means that the court can take a “second look” at the time of divorce to determine if the spousal support waivers and/or limitations in a prenup are fair given the parties’ financial circumstances at the time of the divorce. . This issue was recently addressed in the 2022 case of Marriage of Zucker

In this case, the parties originally agreed that, in the event of divorce, the wife would receive $6,000 per month in spousal support. However, the Court found that she had spent most of her marriage as a homemaker while her husband grew his net worth to $32M. Additionally, his income at the time of entering into the prenup was substantially lower than it was at the time of divorce, and therefore, the agreed-upon $6,000 of spousal support was now unconscionable, and that this amount would be unsustainable for her current circumstances. Based on this, the court found the spousal support limitation to be unconscionable and invalid, and ordered spousal support to wife based on the husband’s income at the time of divorce. The rest of the prenup was held to be valid and binding.


So, while it doesn’t hurt to include spousal support provisions in your prenup, it’s advantageous to write them strategically so they can develop with your relationship and as circumstances change.

A Quality Prenup is a Legally Binding Prenup

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The best way to ensure a legally binding prenuptial agreement is to engage with an experienced prenup attorney. These legal professionals will be able to guide you in the process and double down on the rules so you avoid mishaps down the line.

If you want to learn more about crafting a solid prenuptial agreement, schedule a consultation call with me here. I’m passionate about helping people create mutually beneficial prenups that hold up in court.

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