Prenups 101: Before You Tie the Knot in 2023

Wedding bells in your future? A prenup is the most valuable asset for you and your spouse as you enter this new chapter of life together.

Whether going through the motions before your wedding or curious about options as a couple, this guide breaks down everything you need to know about prenups.

Note that this guide is geared toward people planning to marry in California. However, many of these same principles apply to other community property states (more on this later).

What Is a Prenup?

A prenuptial agreement (AKA “prenup”) is a legally binding contract between a couple that not only clearly lays out what happens in the event of divorce but also allows couples to engage in marital financial planning by rewriting the law that governs how their finances will be handled during marriage.

Topics may range from allocating certain assets as separate property to creating joint accounts and other joint assets and from property division to spousal support.

Why Should I Get a Prenup?

First, a prenup is a great marital financial planning tool for understanding your respective income, debts, and assets ahead of your marriage.

It’s a great opportunity to deepen your relationship and better understand each other’s financial expectations from the marriage by having a dialogue around your views and values on finances.

You’re prompted to have critical conversations that keep you and your partner on the same page prior to tying the knot. But it continues to pay dividends as you continue to have these money talks successfully throughout your marriage.

It’s important to note that if you don’t get a prenup, your state’s default laws will determine how assets and debts are divided in divorce. With a prenup, you and your partner get to decide — and not a judge — on how to guide your marriage and what happens in the event of a divorce.

Some equate getting a prenup to getting insurance. Just as no one expects to get into an accident or end up in the hospital, no one goes into marriage anticipating that they will divorce.

However, looking at a prenup solely as insurance buries the lead. It doesn’t showcase the true importance of a prenup. It’s not just a safety measure; it’s a powerful tool that empowers your marriage with deep thinking, future marital planning, and collaboration.

How Do Prenups Work?

California is a “Community Property” state. This is where things can get sticky in a divorce. Without a prenup, certain commingled assets are viewed as 50/50 in the eyes of the law (except for gifted or inherited property).

In addition, even if you have separate property prior to marriage, CA law allows the community to gain an interest in your separate property through your skill, time, and monetary investments made to improve your property during marriage.

By establishing a prenup, you set specific parameters around which properties, assets, and debts belong to which spouse and how those parameters will remain in place throughout your marriage. This becomes the new roadmap for characterizing assets and helping to avoid a contentious court battle in the event of divorce.

But Aren’t Prenups Just For The Wealthy?

This is a common misconception. Despite what you might see in the media, you don’t have to be rich and famous to need a prenup.

Incorrectly, the prenup has been presented as a way for celebrities to protect their wealth. Prenups inevitably became one and the same with high-profile weddings and breakups, leading to a disconnect between the general public and the true purpose and benefits of prenuptial agreements.

As prenups have become more commonplace, this stereotype has slowly broken down. Truthfully, prenups are one of the most effective ways to build trust in your relationship and set clear financial ground rules for your marriage. It is your and your partner’s opportunity to align your values before you tie the knot.

At the end of the day, establishing a prenup is about having deep financial discussions — something you don’t have to be rich and famous to do.

What Should I Include In My Prenup?

Prenups can cover everything from income and debts to education and business plans. They can even dive into social media privacy and pet ownership. In addition, you have the freedom to tailor your prenup to your unique relationship, financial situation, and lifestyle.

Essentially, prenuptial agreements consist of a number of clauses that outline specifics about how finances and belongings will be handled during your marriage, as well as if you part ways with your spouse.

Coming to the prenup from a place of complete honesty is the best first step. Next, you and your partner should list your assets and liabilities with as much accuracy as possible. This sets the groundwork for a full understanding of your financial positions and a solid prenup.

It’s especially important to establish these clauses with as clear and concise language as possible. This way, there is no room left for confusion.

What Are the Legal Requirements of a Prenup?

Here are the legal requirements you must factor in when creating your prenup agreement:

• The final agreement must be left untouched for at least seven full days before the parties sign it.
• Both parties must sign the agreement voluntarily and without duress.
• The agreement must be in writing and signed by both parties in the presence of a notary public (verbal agreements are not valid).
• Before signing the agreement, each party must fully and accurately disclose their assets, liabilities, and income.
• The agreement must be generally fair and reasonable at the time it is signed.
• A prenup attorney from both sides must review the agreement, especially if it includes spousal support provisions. Otherwise, each party must waive their right to an attorney review by signing a separate agreement.

What Can’t be Included in a Prenup?

The provisions within prenups are generally designed to account for topics related to property and finances. This covers a significant amount of ground. However, child support and custody issues cannot be included in a prenup.

Additionally, infidelity clauses are not recognized because California is a no-fault state. This means you should not include any provisions that punish either party for their conduct during the marriage.

Do Both My Partner and I Need Lawyers?

While you and your partner can have separate lawyers to create your prenup, you do have the option to take a more collaborative approach.

In California, it is normal to use a prenup attorney on both sides to draft your prenuptial agreement. Alternatively, you and your partner can utilize a single neutral mediator. The advantage here is that it eliminates the back and forth while enabling you and your partner to negotiate the prenup as a united force.

By utilizing a mediated prenup, you talk with each other from the very beginning, and the mediator guides the conversations to keep you focused.

Remember that while a mediator is a great option, you and your partner should hire a reviewing attorney to meet with you individually and sign off on the agreement.

Additionally, if your prenuptial agreement contains spousal support provisions, then California law requires you to both have legal counsel.

Can I Write My Own Prenup?

According to California’s Uniform Premarital Agreement Act (UPAA), you can create your own prenup. The requirements are that it must be in writing and follow all the rules of a valid prenup.

While this is a viable option, you risk having your prenup rejected in court if you do not follow these requirements precisely.

It’s important to be aware of the potential drawbacks to a DIY prenup. Keep in mind that since finances and lifestyles vary from couple to couple, there is no one-size-fits-all prenup. Resist the temptation to copy and paste jargon from examples you find online.

How Do I Write My Own Prenup?

If you do choose to craft your own document, here are some helpful tips to consider:

1. Talk to your partner.

Prenups are meant to be collaborative documents. In fact, if a court finds a prenup to be one-sided, then it may become invalid. This means that you must have important dialogues as a couple to create a solid and legally sound document.

Consider a few of the following financial questions:

• Will community property be created during your marriage or not?
• Are there assets that you want to keep as separate property?
• Will you open a joint bank account?
• Will your respective incomes during marriage be separate property or community property?
• If you decide to open a joint account, how will you contribute to it, and what bills get paid from it?
• How will you divide up assets and debts in the event of a divorce?
• Who will pay spousal support, and how much?

Use this comprehensive prenup planner as guidance for which questions to ask and clauses to consider.

2. Use an online prenup template.

There are a number of online services and web applications to aid in drafting a quick and affordable prenup. However, remember that while these are legal in California, they’re only viable if you have included enforceable terms and provisions that will hold up in court. I highly advise couples to hire a family law attorney to review their prenup for this reason.

3. Consult with a family law attorney.

You may be tempted to have your business or estate planning attorney assist you in crafting your prenup agreement. This may save time and money but proceed with caution as not all lawyers understand the nuances of family and prenup law.

Connect with a family law attorney that specializes in marital financial planning and prenuptial agreements instead.

Can I Get a Prenup After Marriage?

Short answer: yes, you can get a prenup after the wedding. Except, it is called a postnuptial agreement, or “postnup,” and functions almost identically to a prenup.

Postnuptial agreements typically cover the same clauses as prenups and are a great option for those who did not establish a prenup before marriage.

Couples may explore postnups for a myriad of reasons, including financial tension, if one party comes into a significant amount of money, and/or if there are kids from previous marriages involved, to name a few.

State laws vary when it comes to postnups, so it’s a good idea to look into how they function depending on where you live. For example, in California, the agreement must possess the “highest good faith and fair dealings,” according to Family Code Section 721.

How Much Does a Prenup Cost?

The cost of a prenup will vary on several factors, including the number of clauses, the complexity of finances, and where you live. Generally, a well-crafted prenup drafted by a Los Angeles family law attorney starts at around $5,000.

Can a Prenup Be Voided?

In California, a prenuptial agreement can be voided depending on several factors, including improper timing, coercion, and mishandled procedures.

Legalities regarding prenup agreements vary from state to state. California follows Family Code 1615, which governs the handling and enforceability of prenups.

Here’s a quick summary of what this code covers:

Factors that Void Prenups in California

1. Timing: California follows the 7-Day Rule. This requires that the agreement is finalized in writing at least seven calendar days before signing. Otherwise, the prenup is not valid.
2. Signing under duress: A prenup is only valid if it is signed willingly by both parties.
3. Agreeing under false promises: Financial disclosures must be made fully and accurately.
4. Skipping an attorney review: In California, it is mandated that each spouse retain an attorney to review the contract before it is signed if it includes spousal support waivers or limitations. This ensures legality and fairness. The only workaround is if one party waives the right to an attorney review, which must be apparent in a separate writing.
5. Unconscionable terms: One or more clauses are overtly one-sided and/or unfair.
6. Using a verbal agreement: Verbal agreements are not enforceable, meaning the prenup must be in writing.

Can a Prenup Expire?

Most couples create prenups to last throughout the entirety of their marriage. However, there is an option to put an “expiration date” on a prenup. This is achieved through a “sunset clause.” It’s included in the prenup and establishes a date at which the document is no longer valid. Consult with a family law attorney to include this clause before doing so.

Common Mistakes to Avoid

Outside of the actions listed above that can void your agreement, here are mistakes to avoid when crafting your prenup:

• Don’t wait until the last minute: Remember the 7-Day Rule requires you to have a finalized agreement in writing at least seven calendar days before signing. Don’t expect to draft a prenup right before you walk the altar — the prenup won’t hold up.

• Don’t involve your family: Keep your prenup between you and your partner. It’s about your life and your marriage, so there is no reason to involve other family members who will come to the table with their own thoughts and opinions on marriage — not all of them in your best interest.

• Don’t skim through your agreement: Be diligent in reviewing your agreement before sending it to your partner. In addition to typos or grammatical errors, you may have overlooked certain provisions or included clauses by mistake.

• Hire the right attorney: Finding an attorney who works collaboratively with you and your spouse is crucial in ensuring a positive experience. This is not the time for an aggressive divorce lawyer that pressures your partner into making concessions.

So, Where Do I Start?

Now that you know the ins and outs of prenups, what are the next steps?

Have an Honest Conversation with Your Partner

Deciding to get a prenuptial agreement is a strong choice that will set you and your partner up for a successful marriage.

Consider these questions before contacting a lawyer:

• Are you savers or spenders?
• Does either of you have a lot of debt?
• Are you expecting a large inheritance or own a business?

Talking through these matters will not only help you get a clear and well-crafted prenup, but it will also help you communicate, build trust, and get on the same page. You and your partner will feel aligned as a unit heading into your attorney search.

Reference These Prenup Guides

Visit my prenup resources page for a comprehensive collection of videos, blogs, and planning documents to kick-start your journey. There is a wealth of information within these resources to help you feel empowered in your decision-making.

Find the Right Prenup Lawyer In Your Area

Ready to start your prenup? Prioritize finding the right prenup attorney with rich experience in prenups. This can be accomplished by simply asking how many prenups they have created and reviewed in their career.

Additionally, seek out an attorney with stellar listening and communication skills. This will help to achieve your marriage goals and result in a prenup that leaves you and your partner feeling positive and ready for the road ahead.