For Prenuptial (also referred to as Antinuptial) Agreements to have the greatest chance of surviving a challenge, the following checklist should be followed for Prenuptial Agreement:
1. The Prenuptial Agreement should be drafted so that each provision applies to both parties (e.g. each party’s earnings to remain separate property).
2. The terms of the Prenup Agreement must not be promotive of dissolution.
3. There should be full disclosure of all assets and liabilities. Waiver of disclosure is permitted (see Family Code §1615), but should be used with caution.
4. There should be no attempt to limit or waive child support or attorneys fees related to children.
5. The Premarital Agreement should be presented to the other party in sufficient time to permit legal representation. (See Family Code §1615 (c).
6. Each party should obtain independent legal advice and representation and the attorneys should sign the agreement as having advised the client as to its meaning and legal effect.
7. The Prenuptial Agreement should be signed several days (or weeks) prior to the ceremony.
8. Some bargained-for exchange should be evident (e.g., the addition of life insurance on the life of wealthier spouse for benefit of another spouse).
9. The Agreement should be executed in the presence of a notary who immediately acknowledges signatures.
10. Witnesses should be present to verify that the parties are not under any obvious signs of undue influence.
11. Consider videotaping the execution of the Agreement and voir diring parties as to the voluntariness thereof. If enough money is involved, consider hiring a retired judge to conduct the voir dire of both parties.
12. Each party and his/her attorney should receive executed copies, and the agreement should acknowledge receipt.
13. The client must understand the terms of the agreement and how to live by them to avoid comminglings of assets and claims of waiver. No agreement will protect the parties if they ignore it to conduct their affairs as though it did not exist.
14. Consider recording an abstract of the Agreement’s key terms.