What Cannot Be Included in a Prenuptial Agreement?


Prenuptial agreements, or prenups, have exploded in popularity in recent years. It’s no wonder because many Californians want to protect their hard-earned assets as they head into marriage or lay out a financial roadmap for themselves.

However, before you rush to put your pen to your prenup, it’s essential to know that California law doesn’t allow certain provisions to be included in your prenup. Rather, you can include whatever you want, but unless it’s enforceable under California law and your family law judge agrees with it, it won’t be enforced if you ever need to rely on the agreement.

It’s crucial to hire an experienced attorney to help you draft and execute your prenup. They can help ensure you don’t forget any critical points and that you don’t cover terms that the law won’t support. Your attorney will help you create an enforceable prenup should you ever need to rely on it.

What Your Prenup Cannot Address

Prenuptial agreements can include many different provisions, but there are some the law doesn’t allow. It’s crucial to be aware of what you aren’t permitted to include before drafting your prenup.

Child Custody/Child Support

California family courts will always make child custody, parenting plan, and child support rulings based on what is in the child’s best interest. They will not base their decisions on what you and your spouse determine before you even have the child. Under no circumstances will courts uphold any part of a prenup that has to do with child custody or support. Since children aren’t personal property, they aren’t to be included in a prenup.

However, there are a few exceptions, such as:

  • If you receive child support resulting from a past relationship, you can protect those funds through a prenup
  • Ensuring anything you or your spouse purchases for your respective children belongs to them
  • Certain financial aspects if you have children together
  • Compensation for college tuition
  • Extra money to support an adult child with special needs

Violations of the Law or Public Policy

No matter what your prenup addresses, it cannot violate the law or public policy. Any provision that does will be unenforceable. For example, a prenup that penalizes someone for not living up to unreasonable religious or moral obligations might be unenforceable.

Unreasonable Terms

Prenuptial agreements can’t include terms that are considered unconscionable at the time it was signed. This includes provisions that unfairly indulge one spouse or excessively penalize one spouse. For instance, clauses relating to fidelity or infidelity are generally not enforceable. For instance, a clause stating no spousal support is payable if a spouse commits adultery wouldn’t be enforceable by a court.

California’s Prenup Laws

California’s Uniform Premarital Agreement Act (UPAA) is the primary statute that details the rules and requirements for prenup agreements. Under the law, a premarital agreement is a contract two prospective spouses enter into before marriage that doesn’t become effective until they marry. Prenuptial agreements can include income, real estate, earnings, financial interests, debts, and other present or future assets. Under the UPAA, a valid prenup must meet the following requirements:

  • Be a written contract—no verbal agreements
  • Have lawful terms within the prenup
  • Include the signatures from both parties
  • Must be signed voluntarily (can’t involve coercion, duress, intimidation, or deceit)
  • The parties must each have a minimum of seven days to seek independent legal counsel before signing the contract

What Matters Can a Prenup Address?

In general, a prenup can include many different rights and issues regarding marital property. It can address the following:

  • Rights to sell, buy, or otherwise use a piece of property
  • Division of property upon divorce or death
  • Drafting of a trust or will
  • Rights to life insurance policy death benefits 

Hire a Prenuptial Agreement Attorney for Hel

Prenup agreements might seem like a straightforward area of law. However, you could render it unenforceable and ineffective if you don’t draft yours correctly or omit or include certain terms. If you take the time to create a prenup, you want an enforceable one. The best way to ensure your prenup will stand up to the test if you need it is to hire an experienced prenuptial agreement attorney. By hiring a well-versed lawyer to help you, rest assured that you won’t forget to include anything you need to, and you won’t waste your time trying to include something that won’t hold up in court. Make the most of your time and effort by enlisting the help of an attorney.