Q: Question for a California family law lawyerPublic notary and wittiness for a separation agreement

A: If you and your spouse want to enter into a legal agreement without filing for divorce, for legal separation, or without otherwise making this agreement into an enforceable court order, to be valid, the agreement must meet the requirements of basic contract law. It must be 1) in writing, 2) there must be "consideration" for the terms of the agreement referenced in the agreement; 2) the agreement must be signed, and 3) notarized. Both signatures need to be notarized and they can be witnesses/notarized by the same notary (i.e. 1 notary; not 2). The notary is your witness. You do not need additional witnesses if your agreement is notarized. There may be circumstances that arise that render the agreement nevertheless unenforceable (such as drafting errors or one party's claim later on that they did not understand what they were signing). My recommendation is that you proceed with filing for divorce and once you have an open case, prepare a proper stipulation and order (after financial disclosures have been exchanged). You do not need to create an agreement before filing for divorce. You can proceed with your divorce and base your final judgment on a written stipulated agreement between the spouses. To ensure that no one claims later on that they did not understand what they were signing, the terms of the agreement and their impact/ramifications should be explained to each party by an attorney.

A: In California, a separation agreement between spouses does not require a witness to be present during notarization. Notarizing a document is enough to make it legally binding.

However, it is important to note that if the separation agreement involves certain types of property, such as real estate or vehicles, it may be necessary to have the signatures notarized in the presence of witnesses as well. This is because California law requires certain types of documents to be notarized in the presence of two witnesses in order to be valid.

In terms of the minimum number of witnesses and notaries required, it depends on the specific circumstances of the separation agreement. Generally, one notary public is sufficient to notarize the signatures on a separation agreement, but additional witnesses may be necessary depending on the type of property involved.

It is recommended that you consult with an attorney who specializes in family law to ensure that your separation agreement is properly executed and legally binding. An experienced attorney can guide you through the process and provide guidance on the specific requirements for notarization and witness signatures.