A prenuptial agreement, commonly known as a “prenup,” can provide clarity and peace of mind for couples before they marry. However, it is important to understand what can and cannot be included in a California prenuptial agreement to keep it valid and enforceable.
What Can Be Included in a Prenup
- Division of Property and Assets One of the main purposes of a prenuptial agreement is to outline how property, assets, and debts will be divided in the event of a divorce or legal separation. This can include real estate, personal property, retirement accounts, and business interests. You can also specify what property will remain separate and what will be considered community property during the marriage.
- Spousal Support Prenups often include provisions regarding spousal support, also known as alimony. You can decide whether one spouse will be entitled to support and, if so, how much. However, courts may scrutinize these provisions if they appear to be unfair or were created under duress.
- Debt Allocation If one or both partners have significant debts before marriage, a prenup can clarify how those debts will be handled during the marriage and in the event of divorce. This can prevent one partner from becoming responsible for the other’s premarital debts.
- Inheritance Rights You can outline specific inheritance rights within a prenup to protect family assets or provide for children from a previous relationship. This helps make sure each spouse’s wishes regarding inheritance are clearly defined.
- Business Ownership If one partner owns a business, a prenup can help protect that business and its future earnings from being divided or affected by a divorce. You can outline how business assets will be treated and whether the other spouse will have any claim to the business.
What Cannot Be Included in a Prenup
- Child Custody and Support A prenuptial agreement cannot include provisions regarding child custody or child support. California courts always prioritize the best interests of the child, and any attempt to predetermine these issues in a prenup will be invalid. Child support and custody decisions are made based on the circumstances at the time of the divorce, not before.
- Anything Against Public Policy Any provision in a prenuptial agreement that violates California law or public policy will not be enforced. This includes agreements that encourage divorce or waive the right to child support. The courts will review prenups to make sure they do not contain unfair or illegal terms.
- Unconscionable Provisions If the terms of a prenuptial agreement are found to be grossly unfair or one-sided, a court may rule that those provisions are unconscionable and refuse to enforce them. This might happen if one spouse did not fully disclose assets or if one party was pressured into signing the agreement.
Validity of a Prenup in California
For a prenuptial agreement to be enforceable in California, both parties must fully disclose their assets and debts, and the agreement must be signed voluntarily, without any form of coercion. Additionally, each spouse must have had at least seven days to review the agreement before signing it, and both should have the opportunity to consult with their own attorney. These steps help support the fairness and transparency of the agreement.
A prenuptial agreement can offer a sense of security and clarity, but it is important to know what can and cannot be included under California law. If you are considering a prenup, Irwin & Irwin can help guide you through the process and draft a legally sound agreement that fits your situation. Contact us today to schedule a consultation with one of our experienced attorneys.
