Often people want to enter a marriage and not have to worry about the financial issues that might arise if they cannot stay married. They want their minds clear from any financial issues that might arise. Also and often one party has a significantly greater asset portfolio than the other party and wants to make sure that their assets are safe from the other party.
There are general criteria the State of California demands the parties must adhere to. As in any contract entered into by any party whether it be a prenuptial agreement or not the agreement must be entered into voluntarily. This means that the parties must be free from any force of any kind by the other party or third parties that might force them to enter the contract.
Another issue that can keep people from having a valid prenuptial agreement is if it is unconscionable. That is a big word and it means one party cannot have unequal distribution of the assets in the agreement. Meaning one party cannot just get pennys while the other gets millions.
In addition, when you enter into any kind of contract In California a party must do so voluntarily and not be coerced. So it is important that you take your time before you sign a contract with the other party to make sure you don’t enter into anything without thinking it over.
Furthermore, California requires that you disclose all your assets and debts to the other party before entering into any contract thus false representations. Disclosures are very common and are necessary to achieve a fair balance during the process of crafting the prenuptial agreement.
Probably the most important component of drafting a prenuptial agreement is the requirement that the parties seek and independent review of the agreement by an attorney. And if the party decides to not have an independent review of an attorney they then must draft a waiver saying to the effect they wish to waive their right to an independent review of an attorney. This must be done 7 calendar days before the final agreement is signed.
The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that the party received the information required by this paragraph and indicating who provided that information.
Also the agreement and the writings executed were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.