Prenuptial Agreements
What is a prenup?
A California prenup is a negotiated contract that defines each spouse’s rights, obligations, property division, and potentially spousal support if the marriage ends.
Without a prenup, you have to follow California’s default rules, which may not match your personal goals or priorities. These rules often divide property and debts in ways that don’t consider your unique circumstances, leaving you with less control over your financial future. With a prenup, however, you have the opportunity to craft a customized agreement that better aligns with your unique circumstances and priorities.
Most importantly, having a prenup in place can help avoid costly divorce litigation and provide ease and clarity if your marriage ends.
What is the process for getting a prenup?
In order to create an enforceable and valid prenup, there are several legal formalities.
• Both parties must be represented by separate independent attorneys,
• Both parties must fully disclose their finances (including any assets and debts), and
• The final form of the agreement must be provided to each party at least 7 days before signing the document.
Why would I want a prenup?
You can protect your separate property. For example, if you own real estate or a business before marriage, a prenup can ensure those assets remain yours. This is especially important in California, where the increase in value of your separate property business during marriage—due to your active management—would otherwise be considered community property.
You can create flexible spousal support arrangements. Instead of relying on default spousal support rules, a prenup can include a lump-sum payment or other customized terms based on the length of the marriage. This makes things clearer and more predictable for both parties.
You can establish annual gifts or financial contributions. A wealthier spouse might agree to gift money each year to support shared expenses or personal savings. Or, if you own real estate or your own business before marriage, a prenup can ensure those assets remain yours AND at the same time you can agree to share a specific part of the increase in value of these assets during marriage.
You can establish how to handle real property purchased during the marriage. A prenup can outline how new real estate will be treated, whether it becomes community property or remains separate. It can also define how to calculate its value in case of a divorce, including adjustments for things like down payments, mortgage payments, or market appreciation. This clarity reduces potential disputes and ensures fairness.
You can agree to waive reimbursement for certain contributions. For example, if one spouse uses separate property to help purchase a shared asset, like a home, the prenup can ensure this contribution is treated as a gift rather than something to be repaid later.
You can clarify how investments or income are divided. A prenup can specify whether income or dividends from separate property during the marriage will be shared or remain separate, reducing potential confusion.
With a well-drafted prenup, you’re not just protecting assets—you’re creating a clear, fair, and customized roadmap for your financial future together.
How much does a prenup cost?
The cost of a prenup can range between $2,000 - $7,500 per person. The cost depends on the sophistication of the agreement, the organization of the parties, and the collaborative nature of the opposing attorney. Typically, the attorney who drafts the premarital agreement charges more than the reviewing attorney, as drafting involves more time and effort in tailoring the agreement to meet the parties’ needs. Review fees are generally lower because the process focuses on advising the client on an already-drafted agreement and suggesting revisions. However, the final cost of review also depends on the complexity of the agreement and the extent of revisions needed.
How long does it take?
It depends on the complexity of what you are trying to accomplish and whether you are aligned. I’ve completed prenups in a month but most take at least 45 - 90 days. The final draft must be done 7 days before you sign and we like to avoid signing the day of the wedding. Reach out as early as you can. I recommend that couples start the process when they get engaged.
What does it look like to work with Gordon Family Law to Draft a Prenup:
1. Initial Consultation and Financial Disclosure:
We’ll start with a free 15-minute consultation to understand your situation and determine if I’m the right fit to help.
I use a flat fee model for drafting to ensure you can take the time needed to work with me without worrying about billable hours. My focus is on creating the best possible agreement—one that is thorough, accurate, and tailored to your unique situation—so you feel confident before moving into negotiations. The goal is to produce a thoughtful and clear document that sets you and your fiancé’ up for success.
2. Creating a Term Sheet:
Next, we’ll dive into your goals and priorities for the agreement in an hour meeting. You’ll also provide a full picture of your financial situation, including assets, debts, and income, to ensure transparency and compliance with California law. I will help you outline the key terms of the agreement—such as property division, spousal support, and how to handle financial decisions during the marriage—into a clear term sheet. This term sheet provides clarity and serves as a helpful tool for facilitating conversations with your fiancé before the drafting process begins.
3. Drafting and Revising the Agreement:
Based on the term sheet, I’ll draft a prenuptial agreement tailored to your needs. Once the initial draft is ready, you’ll review it with me and then we work through any revisions collaboratively with your fiancé’s attorney.
4. Finalizing and Signing:
Once the agreement is finalized, it must be provided to both parties at least seven days before signing. While notarization is not legally required, it’s a good practice to reinforce the agreement’s formality and enforceability.
Do I need my own attorney if my fiancés attorney prepared the agreement?
Yes. Prenuptial agreements require that both parties are fully informed about California law and that they disclose finances. Having attorneys on both sides of the agreement prevents future questions about fairness. The goal is to create an enforceable agreement that will not be set aside or thrown out at a later date. Having representation is one way to protect against a future challenge.
Why are Prenuptial Agreements expensive?
I always remind clients that prenups—while not cheap—are an investment in your financial future. A well-crafted prenup not only saves you from potential legal battles but also provides peace of mind, ensuring both partners are protected long-term.
A poorly drafted prenup—whether it’s legally unenforceable, misses key contingencies, or doesn’t reflect your intentions—can cause significant issues. These quick, low-cost solutions rarely account for the complexities of California’s community property laws or the nuances of your unique relationship. Without this careful attention, the prenup may not stand up to legal scrutiny, leaving you vulnerable when it matters most.
Some document preparation services or attorneys may offer cookie-cutter “quick” prenups for $500. While these might seem appealing, they often fail to address your specific circumstances. Unfortunately, you might not discover the shortcomings until years later—when it’s too late—and fixing those mistakes could cost far more than doing it right the first time.
A personalized prenup is an empowering tool that respects your unique circumstances and creates a foundation of financial transparency and trust in your marriage. Every client deserves a thoughtful, tailored agreement, which simply cannot be achieved with a one-size-fits-all approach.
Do we need to have our prenup notarized?
I suggest that my clients notarize their prenups to enforce the formality of the agreement. However, there is no specific legal requirement that a premarital agreement be notarized or recorded to be effective.
What is California law on prenups?
Family Code Section 1500 provides: “The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement.”
Family Code Section 1612 provides what two parties may contract for in a prenup:
1. Rights and Obligations of Property
2. Right to buy, sell, transfer, encumber, use and manage.
3. Distribution of property on death.
4. Death benefits in life insurance policies.
5. Choice of Law
6. Spousal Support
7. Any other matter so long as it is not in violation of public policy.
What is the seven-day calendar rule?
Family Code 1615 states that an agreement is not enforceable if the party against whom enforcement is sought had less than seven calendar days between the time that the party was first presented with the agreement and advised to seek independent counsel, and the time the agreement was signed.
For premarital agreements executed after Jan. 1, 2020, the legislature has clarified that the seven-day waiting period required by Family Code section 1615(c) (between being first presented with the agreement and being advised to consult an attorney, and the time the agreement was signed) applies even if a party is represented by an attorney. This revision supersedes, on a prospective basis, the holding in Marriage of Cadwell-Faso & Faso (2011) 191 Cal.App.4th 945, in which the court of appeal held that strict compliance with the seven-day waiting period didn’t apply to a party who was represented by counsel from the outset of a premarital agreement transaction. The seven-day “clock” will not restart if the amendment to the agreement is nonsubstantive—for example, correcting the spelling of a party’s name.
California's Uniform Premarital Act was first adopted in 1986 and is modeled on a Uniform Premarital Agreement Act that was promulgated in 1983. 27 states besides California have adopted a version of that uniform act.