Frequently Asked California Prenup Questions (FAQ's)
Do I need a lawyer for a California prenup?
While not legally mandatory, we strongly recommend that each partner consults and retains his or her own separate independent attorney. This makes the agreement not only more fair and balanced but also much more likely to be enforced by a future court.
The strongest example of this point is a spousal support clause in your prenup. California Family Code 1612(c) states, ” (c) 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.”
So, even if the party against whom the spousal support clause is sought to be enforced was represented by independent counsel at the time of signing, it will be unenforceable if the future judge finds that its enforcement would be unconscionable, but if that party was not independently represented, the spousal support clause will not be enforceable, regardless.
What would be the point to having a prenup that contains a spousal support agreement clause if you are going to render that clause unenforceable without question by one of the parties not retaining independent counsel?
Can we change our prenup after marriage?
Absolutely! You can modify or revoke entirely a prenup/postnup by a subsequent written agreement, signed by both of you, at any time after the date of execution of the original prenup/postnup. In other words, you can modify or revoke an existing prenup even before your date of marriage or domestic partnership.
All Online Prenup Lawyer prenups automatically contain a clause that allows such modification or revocation of the prenup unless you or your attorney deletes that clause before the prenup is finalized.
What happens without a prenup?
California’s community property laws (and other laws) kick in, typically splitting marital assets and debts 50/50. A prenup lets you customize those terms to fit your needs. In other words, you can avoid California community property and other laws by having a written, fair prenup agreement with full disclosure between you and independent legal counsel for each of you.
Are prenups enforceable in California?
Yes, if they’re written, voluntary, fair, based on full financial disclosure, and properly executed and notarized while each of you has independent legal counsel, prenups/postnups are enforceable. Online Prenup Lawyer and its panel of experienced prenup lawyers has your prenup’s enforceability as our prime purpose.
Can a prenup cover child custody or support?
No, it is against the public policy of the State of California for parents to agree in advance (such as in a prenup) to matters of child custody, parenting or child support. All decisions regarding the interests of any child(ren) must be based on the child’s best interests as determined at the time of divorce.
What can be included in a California prenup?
You can include provisions for property division, spousal support, debt allocation, inheritance rights, and how assets acquired during marriage will be handled—tailoring it to protect your financial interests.
How much does a prenup typically cost in California?
Costs vary based on complexity and your wealth. If you hire a traditional prenup lawyer, expect to pay a retainer in the range of $4000-$10,000 plus hourly billables once the lawyer has eaten up your retainer.
There are several non-lawyer online prenup preparers at around $600 flat fee for just the prenup. Online Prenup Lawyer does the same work for $397. Those flat fees are for both parties.
Of course, we recommend Online Prenup Lawyer’s $397 service, but we also recommend that to enhance the enforceability of your prenup as well as to make it more fair and balanced with legal advice for each party that you also each use either one of our panel of experienced prenup lawyers or a trusted and known lawyer of your own choice. Online Prenup Lawyer plus 2 lawyers keeps your actual prenup preparation cost down but also ensures that you only use a lawyer where you need a lawyer – which is NOT on the data gathering, agreement clause selection and actual preparation of the prenup. Be smart. Use Online Prenup Lawyer plus 2 lawyers on our panel or of your choice.
What is the 7-day rule for prenups in California?
The 7-day rule requires that the final version of the agreement be provided to each party at least seven days before that party signs it and has it notarized, giving reasonable time and opportunity for review and consideration of the prenup and thereby reducing the chance that either party will not understand what s/he is signing or be rushed into signing it.
Are prenups only for the wealthy in California?
No, they’re useful for anyone, even of modest means. Prenups protect assets, future earnings, determine how debts are paid, make arrangements for future plans, such as the education of one party, make arrangements for stay-at-home parenting, determine how joint bank accounts and credit cards will be managed, etc. – many arrangements that have no connection to wealth.
Can a prenup protect future assets and earnings?
Yes, it can specify that future income, investments, or business growth remain separate property, safeguarding what you build after marriage.
What makes a prenup invalid in California?
A prenup could be invalid due to coercion, fraud, lack of full financial disclosure, or if it’s terms are deemed unconscionable by a future court—always ensure fairness and proper execution and notarization. Both of you having independent legal counsel greatly reduces the risk of lack of enforcement of your prenup.
Can a prenup waive spousal support in California?
Yes, but a future court will review it for fairness. The waiver of spousal support must be fair and not unconscionable at the time of enforcement – not at the time of signing the prenup. There must be full disclosure (no force or fraud) and independent counsel for each of you.
What is the difference between a prenup and a postnup in California?
A prenup is signed before marriage, while a postnup is signed after marriage. Both can address all of the same issues like property and support. However, postnups generally attract stricter scrutiny by a future court just because postnups are likely to have less planning ahead and more pressure to sign..
Should I be offended if my partner wants a prenup?
No. A prenup is often a practical step for personal protection and clarity. Why would you not want a person you care about to protect himself or herself? A prenup is like insurance. It can even strengthen your relationship through the greater understanding caused by open financial talks.
Does a prenup set a marriage up for failure?
No, it actually reduces potential conflicts. It allows you to resolve problems in advance and focus on building a strong partnership without financial worries.