A prenuptial agreement (prenup) is a legally binding contract that is created before a couple gets married. It becomes effective on the date of the marriage. A prenup can contain terms for a divorce should the couple ever decide to break up. A prenuptial agreement is a way to protect your assets and interests against any possible future with your spouse. Your prenuptial agreement will only be valid and stand up in court during a divorce, however, if you do not include any unlawful or prohibited terms.
Child Custody, Visitation or Support
The law does not allow a couple to include any terms regarding child custody, visitation or support in a prenuptial or postnuptial agreement. This is because a judge will make these decisions in a divorce case based on the child’s best interests. A judge will not honor any terms pertaining to children of the marriage that are written in a prenup. Instead, the judge will carefully analyze the facts of the divorce at the time that the case is presented and make custody and support decisions based on what will protect the child’s best interests and wellbeing.
Waiving the Right to Alimony
Alimony determinations generally cannot be made by a prenuptial or postnuptial agreement. This is one of the most common prenup provisions struck down by courts in California. Although a judge may allow some terms regarding alimony, the courts generally will not accept anything that waives one spouse’s right to request alimony in a divorce or separation, as this would be unfair for that spouse. Instead, like child custody, the courts will determine alimony based on the facts of the situation.
Any prenuptial agreement that contains terms requiring one spouse to engage in or go along with illegal activities is invalid in California. Requiring a spouse to be complicit in gang or mob activities, for example, is not allowed. If a prenuptial agreement does contain illegal activities, it may invalidate part or all of the legal document.
It is against the law to include any personal matters or requirements, other than financial issues, in a prenuptial agreement in California. For example, one spouse cannot require another to maintain a certain weight, appearance or hair color. A prenup also cannot have provisions about childrearing or one spouse’s relationship with other relatives. A prenup is designed to organize financial matters, not to enforce private or frivolous domestic matters. A judge will not enforce any such terms.
Provisions That Encourage Divorce
If a judge believes that any terms included in a prenuptial agreement were designed to encourage a divorce, such as financial incentives for either spouse, a judge might rule not to enforce these terms or to throw out the entire prenuptial agreement. A judge will pay close attention to the words and details of a prenuptial agreement to search for anything that may be viewed as an enticement to get divorced for either party.
What Can a Prenuptial Agreement Include?
In general, prenuptial agreements in California can contain terms regarding property division, marital assets and debts, and other financial issues. These legal documents may be beneficial to couples with business interests, retirement benefits, valuable separate property or significant debts being brought into the marriage, or any couple that wants to avoid potential disagreements should the marriage end in divorce.
Even if the rest of your prenuptial agreement is legally enforceable, having terms that cannot lawfully be included on a prenup can invalidate the entire document. This is why it is important to work with an experienced family law attorney in Sacramento to create your prenuptial or postnuptial agreement. An attorney can make sure that your document is valid so that you can have greater peace of mind when getting divorced or legally separated.