“We Want Prenup, Yeah! It’s Something That You *May* Need to Have”

Kanye West and Jamie Foxx were on to something with their 2005 hit song “Gold Digger,” ever-so-subtly advising their listeners to get prenuptial agreements. But, if you are looking for a prenuptial agreement that will stand the test of time, you may want to fill in those lyrics with some legal advice. Now, with COVID forcing many couples to delay their weddings, you have that much more time to thoroughly vet those prenup terms.

But first, a little story. One day in court, an attorney was overheard telling his business client, who was getting married for the fourth time, that he should let him prepare a “fill-in-the-blank prenup” for him. The attorney went on to joke that, every time his client got (re)married, he could just change the name in the prenup. If only they were that easy…

Unfortunately, or rather, fortunately, prenuptial agreements do not work that way. Prenups require more reasoned negotiations than Kanye and Jamie may have led you to believe. Parties to a prenuptial agreement can contract with respect to any of the following:

• Their rights and obligations with respect to property, wherever it is located;
• The right to buy, sell, use, transfer, exchange, lease, etc. any property;
• The disposition of property upon separation, divorce, death, or other specified events;
• The making of a will, trust, or other arrangements to carry out the provisions of the agreement;
• The ownership rights in and disposition of the death benefit from a life insurance policy;
• Agreements regarding spousal support or waivers of spousal support so long as the party taking the detriment was represented by counsel;
• Any other matter, including their personal rights and obligations, not in violation of public policy or criminal laws. (Child support, for example, cannot be waived in a prenuptial agreement.)

Understandably, it takes some time to fully understand the extent of the rights one may be giving up or altering in a prenuptial contract. To ensure parties have some time to let the terms of their prenuptial agreement sink in, California Family Code 1615 now requires a 7-day “cooling off” period for all prenuptial agreements prepared after January 1, 2020. Thus, regardless of whether a party is represented or not, a prenuptial agreement will be invalid if the 7 day “cooling off” period is not honored. Even so, if a court senses that a contract was executed too hastily, under duress, fraud, undue influence, or lack of capacity or competence at the time the agreement was signed, the contract could be invalidated, and your pre-marital negotiations could be all for naught.

There are numerous other intricacies and formalities required to drawing up a valid prenuptial agreement, and we suggest you and your soon-to-be-spouse retain counsel to be fully informed.

Do you still plan on saying your happily-ever-after vows? We at Mendes Weed will enthusiastically raise a glass to you and yours and hope you never have to pull that prenuptial contract out of the filing cabinet.