What Can & Cannot Be Included in a Prenuptial Agreement?

Posted in Prenuptial Agreements on September 1, 2021

Prenuptial agreements, often referred to simply as prenups, are a common way to protect one’s assets and desires when getting married. A prenuptial agreement in California has the power to determine many issues in the event of a divorce, including property division and alimony. It is important to make sure that your prenuptial agreement contains only valid and lawful terms. One mistake could invalidate the entire agreement, making it legally unenforceable.

Can a Prenuptial Agreement Determine Property Division?

Yes. This is one of the main reasons why most couples create prenuptial agreements – to arrange property division while they are still amicable and able to compromise with each other. Determining in advance how assets and debts will be divided should the couple ever get divorced can prevent arguments and costly legal battles in the future.

A prenuptial agreement in California can organize the couple’s assets into community and separate property for legal purposes. Upon divorce, the courts will have grounds to divide community property, but not separate property. The prenuptial agreement can also determine how property will be divided between the spouses in a divorce. Finally, a prenup can have provisions to protect family property, family heirlooms, a family business or family inheritance from being split with the other spouse.

Can Protections Against the Other Spouse’s Debt Be in a Prenup?

Yes, it is legal to include provisions protecting one spouse from absorbing any debts accumulated by the other spouse during the marriage in a prenuptial agreement. With this type of provision, if one spouse racks up a lot of credit card debt, student loan debt or another type of debt during the marriage, it will remain that individual’s separate debt after a divorce, even if it would have been classified as community property without a prenuptial agreement.

Can a Prenup Guarantee Alimony?

Yes, a prenuptial agreement can grant alimony (or spousal support) to one spouse if the couple gets divorced. Note, however, that anything in the prenup waiving one spouse’s right to request alimony may not be upheld. Most states do not allow terms that give up one spouse’s alimony rights.

In California, provisions waiving alimony are allowed but subject to a court’s approval that the terms are not unconscionable. If one spouse did not realize what rights he or she was giving up when signing the prenup, or if the provision is not fair based on each party’s income and earning potential, the courts may not enforce the provision.

Can Child Support or Child Custody Issues Be in a Prenuptial Agreement?

No. In California, any provisions in a prenuptial agreement regarding child support or child custody are not enforceable. The courts will assign child custody and support based on the best interests of the child if the parents cannot create a parenting plan on their own. If the prenuptial agreement has issues regarding child custody, visitation or financial support, the courts will ignore these provisions.

Can Provisions for Children From Previous Relationships Be Included in a Prenup?

Yes, a prenup can include provisions for the financial needs of children from a previous relationship, as long as they don’t involve child support or custody. If you have children from a previous relationship and want them to inherit some of your property, for example, you can use a prenup to make sure that this takes place in the event of your death or divorce.

Can a Prenuptial Agreement Outline One Spouse’s Responsibilities?

The answer to this question depends on the situation. A prenup may outline one spouse’s responsibilities if they pertain to financial matters, such as a business, retirement benefits, the management of household bills and expenses, the management of a joint bank account, savings contributions, or putting one spouse through school. A prenuptial agreement may not, however, enforce personal responsibilities, such as maintaining a certain weight or hair color.

To make sure that you and your spouse draw up a valid and legally enforceable prenuptial agreement in Solana Beach, California, contact a family law attorney for assistance.