California Prenuptial Law

California is a “community property” state. The Family Code states: “all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” See Family Code §760.

In California, upon dissolution of the marriage all community property will be split equally. California is a “no fault” state which means it makes no difference to the courts the reason for the divorce.

Property Acquired after Separation but Prior to Divorce:

In certain situations this property can be considered community property.  However in the majority of situations this will be considered the separate property of the spouse who acquired it during separation.  See Family Code §§771-772.

Transmuting Property:Separate property can be “transmuted” into community property inadvertently in some cases through commingling. Although typically there must be actual conveyance of the property from separate property to joint property, such conveyance may occur inadvertently. Prenuptial agreements can protect you from inadvertent conveyances of separate property. See Family Code §§850-853.

The Barry Bonds Case (not the steroid one):

In addition to the Family Code, California prenuptial law is governed by case law. Prior to the California Supreme Court case involving Bonds and his ex-wife Susann (In re Marriage of Bonds), prenuptial agreements were upheld so long as both parties voluntarily signed them. The Bonds case imposed more stringent requirements on prenuptial agreements. California prenuptial law now necessitates that the prenuptial agreement must:

1. Be presented to other side in complete form 7 calendar days before signing (this means in the other spouse’s hands 7 days before signing, not 7 days before marriage). Here is an interesting prenuptial agreement story about Britney Spears and K-Fed: Seven Days.

2. Include a waiver of counsel, if any, in a separate writing.

3. Be drafted in language in which the party is proficient.

4. Allow for independent 3rd party to explain the terms to the party in writing. Consider who is going to explain the terms? (usually opposing counsel’s ethical obligations preclude him/her from explaining the terms to the other party). Law doesn’t demand that each party have an attorney, but in order to satisfy this requirement (and ensure the validity of your prenuptial agreement), most parties seek independent counsel.The Bonds case highlights that FORM of your prenuptial agreement can be as important as SUBSTANCE. Red Leaf Law is highly experienced in California prenuptial agreement law, and, consequently, we will only draft your prenuptial agreement if there is a minimum of 14 days prior to the wedding.The Uniform Premarital Agreement Act (UPPA):

Although California has adopted the UPAA, it has made some amendments. The Bonds case (discussed above) was one cause for such amendments to the UPAA. The UPAA describes the parameters and requirements for a prenuptial agreement to be enforceable. The UPAA, however, gives no indication on what provisions should be included in the agreement. Consequently, an attorney skilled in California prenuptial law should be retained to discuss your unique situation. See Family Code §§1610-1617.

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These are only excerpts from select California statutes and cases and are offered as general information. This sample of California prenuptial law is not intended to create a professional legal relationship between the viewer and Red Leaf Law or act as legal advice. Please read our Legal Notices.