California: C
Statutes
California passed the UPAA in 1986, but it is a weak version. Courts examine “unconscionability” both at execution (signing) and enforcement (divorce), meaning they can easily modify the agreement. Unfortunately, this incentives divorce and litigation.
California Family Code §§ 1610-1617
- Prenuptial agreements must be in writing and signed by both parties
- At least seven calendar days between presented final version and signing
- Party must have an attorney if spousal support is modified
- Courts examine unconscionability both at execution (signing) and enforcement (divorce), meaning they can modify it more easily
- Child custody and child support cannot be modified in a prenup (same in all states)
Case law
California courts like to reject and modify prenuptial agreements, as they have authority to review "unconscionability" both at execution (signing) AND enforcement (divorce). Alimony should be sufficient to avoid "unconscionability" claims, which we guess may be 25-50% of the statutory amount, or 10-20% of payor income. Ultimately, what is "unconscionable" is up to a court's discretion. Asset splits are less important, and a good prenup should keep assets and debts separate property, rather than marital property.
In re Marriage of Zucker (2022) 75 Cal.App.5th 1025
Husband was a hedge fund manager making $400,000-700,000 per month. The wife did not work and the couple had six children after an 11 year marriage. Prenup capped support at $6,000/month and maintaining her marital lifestyle would cost ~$60,000 month. Appellate court found the prenup amount too low, at only 10% of what a California court would likely order.
Lesson: California prenups should offer spousal support significantly above 10% of the statutory amount to not be found unconscionable. For most couples, California calculates alimony as 40% of payor’s income - 50% of recipient’s. This means alimony should be far above 4% of payor’s income (10% of 40%). 10% of the statutory amount is too low, but 25-50% of the statutory amount, or 10-20% of payor’s income, may be upheld (at a future court’s discretion).
In re Marriage of Facter (2013) 212 Cal.App.4th 967
Husband was a lawyer earning $1M per year with $10M in assets. Wife did not work during the marriage and got to stay at home. Prenup gave her $100k-200k in a one time payment. Court found this unconscionable.
Lesson: Prenups should allow for sufficient alimony to not be found unconscionable in California, and avoid asset splits or one-time payments as courts will look past these.
In re Marriage of Clarke & Akel (2018)
Both parties MUST have at least 7 calendar days to review the final version of the prenup before signing.