Premarital and marital agreements in California: what makes them valid?

In California, a premarital agreement must be in writing and signed by both people, and it takes effect when they marry (Family Code §§ 1611 and 1613). A court will not enforce it if the challenger proves they did not sign voluntarily, or that it was unconscionable and signed without fair disclosure (§ 1615). After the wedding, spouses can still change who owns what, but only by a written agreement that clearly says so (§§ 852 and 1500).

This page explains how California treats premarital agreements (often called prenups) and agreements spouses sign during the marriage, what the Family Code requires for each, and where Iranian marriage contracts, the mahr and the half-property clause fit in. It is one of the family law areas listed on the practice areas page, and it connects closely to divorce, property and support, because those are the moments when an agreement is tested.

How a California premarital agreement is made, step by step

The Uniform Premarital Agreement Act, Family Code §§ 1600 to 1617, governs every premarital agreement signed in California on or after January 1, 1986 (§ 1601). A "premarital agreement" is an agreement between prospective spouses made in contemplation of marriage and meant to take effect on marriage (§ 1610).

1. Decide what the agreement covers. Section 1612(a) lists what the parties may agree on: rights in each other's property "whenever and wherever acquired or located", how property is managed, what happens to property on separation, divorce or death, wills and trusts to carry out the agreement, life insurance death benefits, the choice of law, and any other matter that does not violate public policy or a criminal statute.
2. Exchange financial disclosure. Each person should give the other a fair, reasonable and full disclosure of their property and financial obligations. A person can waive disclosure beyond what was given, but only voluntarily, expressly and in writing (§ 1615(a)(2)). Property and accounts outside the United States belong on the list.
3. Advise each side to get an independent attorney. The person who will be bound by the agreement must have been represented by independent counsel when signing, or must have expressly waived counsel in a separate writing after being advised to get one. That advice must come at least seven calendar days before the final agreement is signed (§ 1615(c)(1)).
4. Allow the seven-day review period. For agreements signed on or after January 1, 2020, there must be at least seven calendar days between the time the person was first given the final agreement and the time they signed it, whether or not they had a lawyer (§ 1615(c)(2)(B)).
5. If someone signs without a lawyer, explain it in writing and in their language. An unrepresented person must be fully informed of the terms, the basic effect and the rights being given up; the explanation must be in writing and delivered before signing; the person must be proficient in the language of the explanation and of the agreement; and the person must sign a document saying they received the information and who gave it (§ 1615(c)(3)).
6. Sign in writing, free of pressure. Both people sign (§ 1611). The agreement and the supporting writings must not be signed under duress, fraud or undue influence, and both people must have capacity (§ 1615(c)(4)).
7. Marry. The agreement becomes effective on marriage (§ 1613). If the marriage is later found void, the agreement is enforced only as far as needed to avoid an inequitable result (§ 1616).
8. Record it where real property is affected, if that matters. A premarital or marital property agreement that is acknowledged like a deed may be recorded in each county where affected real property sits (§ 1502).

After marriage, the agreement can be amended or revoked only by a written agreement signed by both spouses (§ 1614).

What an agreement can and cannot change

Section 1500 says the property rights that spouses have under California statutes can be altered by a premarital agreement or another marital property agreement. Without an agreement, property acquired during the marriage while living in California is community property, and the court divides the community estate equally in a divorce unless the spouses agree otherwise (§ 2550). The details of those default rules are on the property division page. An agreement can replace those defaults: it can keep each person's earnings separate, set what happens to a home or a business, or decide which law governs how the agreement is read.

Two limits matter in almost every case. First, a premarital agreement cannot adversely affect a child's right to support (§ 1612(b)); the child and spousal support page explains how child support is set. Second, spousal support terms, including a waiver of spousal support, are not enforceable if the person bound by them did not have independent counsel when signing, or if the provision is unconscionable at the time someone tries to enforce it (§ 1612(c)). That second test looks at the situation at the time of the divorce, not only at the wedding.

Agreements during the marriage: transmutation

Many couples never sign a prenup but later change how property is held: a separate-property condo is put in both names, or a spouse gives up a claim to the other's business. California calls a change in the character of property a transmutation. Spouses may turn community property into separate property, separate property into community property, or one spouse's separate property into the other's (§ 850).

The rule that catches people is § 852(a): a transmutation is not valid unless it is made in writing by an express declaration that is made, joined in, consented to or accepted by the spouse whose interest is harmed. A spoken promise, a habit of treating the house as "ours", or depositing money into a joint account usually does not meet that test on its own. There is a narrow exception for gifts between spouses of clothing, jewelry or other personal items used mainly by the spouse who received them and not substantial in value given the circumstances of the marriage (§ 852(c)). A transmutation of real property is not effective against third parties without notice unless it is recorded (§ 852(b)), and any transmutation is subject to the laws on fraudulent transfers (§ 851). Because spouses owe each other the highest good faith and fair dealing, and neither may take unfair advantage of the other (§ 721(b)), an agreement during the marriage that favors one spouse is looked at closely.

The mahr, the Iranian marriage contract and the half-property clause

Many Iranian couples in Orange County married under an Iranian marriage contract (aqd-nameh) that sets a mahr (mehrieh) and sometimes includes the half-property clause (shart-e tansif). A marriage that was valid in the country where it was contracted is valid in California (§ 308), so a California court can divorce a couple married in Iran once the residency rules are met. The divorce page walks through that process.

Whether a California court will treat a mahr or a half-property clause as an enforceable agreement is a separate question, and the Family Code does not mention either one. The honest answer is that it depends on the agreement and the facts: what the document says, when and where it was signed, who signed it, whether each person understood it, whether there was disclosure, and how the terms fit the California tests above. Some of those tests depend on the date. An agreement signed before January 1, 1986 is governed by the law that applied before the Act (§ 1503), and the seven-day rule in its current form applies to agreements signed on or after January 1, 2020 (§ 1615(c)(2)). Bring the original contract and a translation to the first meeting; the analysis starts with the exact words.

The half-property clause raises its own point. California already divides the community estate equally in a divorce unless the spouses agree otherwise in writing or in court (§ 2550). Whether the clause changes anything for a particular couple depends on how it is worded, what property is involved and whether it reaches separate property that California would not otherwise divide. This page does not describe Iranian law; only California law is explained here.

What changes the answer?

• The date of signing. The Act applies to agreements signed on or after January 1, 1986 (§ 1601); earlier agreements follow prior law (§ 1503). The seven-day rule differs for agreements signed between 2002 and 2020 and those signed from January 1, 2020 (§ 1615(c)(2)(A) and (B)).
• Whether each person had an independent attorney. No counsel and no separate written waiver means the agreement is deemed not voluntary (§ 1615(c)(1)), and spousal support terms fall away without counsel (§ 1612(c)).
• Disclosure. An unconscionable agreement signed without fair disclosure, without a written waiver and without adequate knowledge of the other person's finances is not enforceable (§ 1615(a)(2)). Whether it is unconscionable is decided by the judge as a matter of law (§ 1615(b)).
• Language. An unrepresented person must be proficient in the language of the explanation and of the agreement (§ 1615(c)(3)). An English-only agreement for a spouse who reads only Persian is a problem.
• A void marriage. If the marriage itself is void, the agreement is enforced only to the extent needed to avoid an inequitable result (§ 1616).
• Time. Statutes of limitations on claims under a premarital agreement are tolled during the marriage, but equitable defenses such as laches and estoppel remain available (§ 1617).

A worked example

For example, imagine a hypothetical couple in Newport Beach: Leila, who grew up in Tehran and reads Persian more comfortably than English, and Arman, who owns a small dental practice in Irvine and an apartment in Shiraz inherited from his father. They plan an Iranian ceremony with a mahr and a licensed California wedding in Orange County, and Arman wants a prenup that keeps his practice and the Shiraz apartment separate.

Done properly, the timeline looks like this. Arman's attorney prepares a draft and a schedule of his assets and debts, including the practice, the Shiraz apartment and his bank accounts in Iran and in California. Leila is told in writing to get her own attorney well over a week before signing, and she retains one. Her attorney receives the final agreement, and she signs it more than seven calendar days later. Because she has her own counsel, the spousal support clause can be considered at all; whether it is enforced later will depend on whether it is unconscionable at that time. The agreement states that it does not affect child support. Their mahr stays a separate document.

Change one fact: suppose the final draft arrives four days before the wedding, only in English, and Leila signs without a lawyer. Under § 1615(c) a court would deem that agreement not voluntary unless every listed condition was met, and on these facts several were not.

Common mistakes

• Signing in the last week before the wedding. The seven-day rule is counted from the final agreement, not the first draft.
• One attorney for both people. Independent counsel means each side has their own.
• Leaving out property in Iran. Disclosure covers property and obligations wherever they are. An undisclosed apartment or account abroad is the kind of gap that invites a challenge.
• An agreement in a language one person cannot read well. For an unrepresented person, proficiency in the language of the agreement is part of the test.
• Relying on spoken promises during the marriage. Changing a property's character needs a written express declaration under § 852.
• Assuming the mahr settles everything. It may or may not be treated as an enforceable agreement in California, and it does not replace a properly made California prenup.

What to do this week

1. Set a signing date at least several weeks before the wedding, leaving room for the seven-day period after the final draft.
2. List your property and debts in every country, with rough values and how each is titled.
3. Gather any existing marriage contract, translations, and earlier agreements or deeds.
4. Make sure the other person knows to hire their own attorney, and say so in writing.
5. Decide which language each person will read the agreement in, and plan a translation if needed.
6. If you are already married and want to change how a home or account is owned, plan a written agreement instead of relying on a title change or a conversation.
7. Book a meeting through the contact page to review the plan before anyone signs.

Questions clients ask about premarital and marital agreements

• Is a mahr (mehrieh) enforceable in a California divorce?
• Does the half-property clause in an Iranian marriage contract (shart-e tansif) matter in a California divorce?
• Is property in Iran, or bought before moving to California, divided in a California divorce?
• Married in Iran: can you divorce in California, and is the marriage valid here?
• What if your spouse hides money or property abroad during a California divorce?
• Who keeps the house in a California divorce?
• Is a family business divided in a California divorce?
• What is the preliminary declaration of disclosure in a California divorce?

Frequently asked questions

Can a prenup waive spousal support in California?

It can try, but the waiver is not enforceable if the person giving it up did not have independent counsel when signing, or if the waiver is unconscionable when someone seeks to enforce it (§ 1612(c)).

Can a prenup decide child custody or child support?

A premarital agreement cannot adversely affect a child's right to support (§ 1612(b)). Custody is decided on the child's best interest at the time of the case; the custody page explains how judges decide it.

Do we need a lawyer each?

The law does not force it, but an agreement signed without independent counsel is deemed not voluntary unless the person expressly waived counsel in a separate writing after being advised, at least seven days before signing, to get one (§ 1615(c)(1)). Spousal support terms need counsel for the person bound.

Can we sign a prenup after the wedding?

An agreement signed after the marriage is not a premarital agreement, but spouses can still sign a marital property agreement, and changes in the character of property need a written express declaration (§§ 852 and 1500).

Does the agreement have to be notarized or recorded?

The Act requires writing and both signatures (§ 1611). Recording is optional and matters mainly where real property is affected (§ 1502); a transmutation of real property must be recorded to bind third parties without notice (§ 852(b)).

Can we change the agreement later?

Yes. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by both spouses (§ 1614).

Who is the attorney?

The Law Office of Sourena Sarbazevatan is in Irvine. You can read about his license and languages on the about page.

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in premarital and marital agreement matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.