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What Can’t Be Included in a Prenuptial Agreement?

Posted by Lee Zavatsky | Jan 25, 2023

We are often asked what exactly cannot be included in a California prenuptial agreement, which is called “prenups” and has sharply risen in popularity because people seek ways to protect their assets when they marry.

What Can’t Be Included in a Prenuptial Agreement?
You need to understand what type of provisions cannot be included in a prenuptial agreement.

However, many soon-to-be-spouses don't realize specific provisions can't be included in your prenup. While it's true that you list anything you want, unless California law allows it, it's not enforceable, and the family court judge won't order it,

This is one of the main reasons you need to retain an experienced lawyer to help you draft and execute your prenup. Further, your family law lawyer can ensure you don't forget any essential allowable provisions and that you don't list items not allowed under the law.

So, what exactly is a prenuptial agreement? Simply put, a prenup is a legally binding contract created and executed before a couple gets married.

It becomes legally effective on the date of the marriage. A prenup lists terms for divorce if the couple decides to separate and end the marriage.

It's a common method to protect your assets and interests if you get divorced later. However, your prenuptial agreement is only valid and enforceable if you don't list any prohibited terms.

Prenuptial Laws in California

California's Uniform Premarital Agreement Act (UPAA) is the main statute that regulates the rules and requirements for a prenuptial agreement. It's essentially a contract between spouses before marriage. They commonly include the following:

  • Income;
  • Division of property;
  • Business interests;
  • Death benefits;
  • Financial issues;
  • Insurance policy;
  • Marital assets and debts;
  • Debts brought into the marriage;
  • Valuable separate property;
  • Drafting of a trust or will;
  • Retirement benefits.

Still, a prenuptial agreement has to meet specific requirements, such as:

  • Must be in writing and signed voluntarily;
  • No coercion, deceit, or intimidation to sign;
  • Verbal agreements are not allowed;
  • Must include lawful terms;
  • Allowed seven days to seek independent counsel.

What a California Prenup Cannot Include

Prenuptial agreements can't include several different provisions, and you need to be aware of them when drafting your prenup. They include the following:

  • Child custody;
  • Child visitation;
  • Child support;
  • Waiving spousal support;
  • Encouraging divorce;
  • Unreasonable terms;
  • Any matter that violates the law;
  • Personal issues.

California law does not allow a spouse to include any terms related to child custody, child visitation, or support in a pre-or post-nuptial agreement.

The reason for such a rule is that a judge is responsible for making these decisions in a divorce based on the child's best interests.

California family court judges will closely examine all the divorce details when determining custody and support issues.  In other words, judges won't always base their decision on what you and your spouse decided in a prenup.

However, there are a couple of exceptions, such as if you receive child support from a prior relationship, college tuition, and money for special needs children.

What a California Prenup Cannot Include
Prenups cannot include several provisions.

Spousal Support 

Waiving the legal right to alimony can't usually be included in a prenuptial or postnuptial agreement. If fact, this is a standard provision denied by the court.

However, this should be distinct from a judge allowing the terms of alimony in a divorce. Instead, it's related to a spouse's legal right to receive it. Like child support, judges decide on maintenance based on the circumstances.

Encouraging Divorce 

Suppose a judge believes that some of the terms included in a prenuptial agreement were primarily designed to encourage divorce, such as a financial issue or dividing assets unfairly.

In that case, a judge could decide not to enforce that provision or deny the entire prenuptial agreement. As a result, the details of a prenup are closely scrutinized, including any enticement to get divorced.

Unreasonable Terms 

California prenuptial agreements can't include terms that are considered “unconscionable” when it was signed. In other words, they are provisions that unfairly take advantage of one spouse or penalize them.

Suppose a spouse puts a provision in a prenup that if their spouse commits adultery, they can't receive child or spousal support in a divorce. In that case, the family law court won't enforce this provision.

Personal Issues 

Suppose you include any personal issues in a prenuptial agreement in California, such as your spouse maintaining a certain weight.

In that case, a judge will not enforce this specific provision. Keep in mind that the primary function of a prenup is to deal with financial matters rather than some personal preferences or frivolous issues.

Retain a Prenuptial Agreement Lawyer to Help You

Suppose most of your California prenuptial agreement is legally enforceable. Still, a few provisions within it are not allowed or unlawful.

Retain a Prenuptial Agreement Lawyer to Help You
Contact our family law lawyers for guidance.

In that case, the court can invalidate the entire document. This is why you must retain an experienced family law attorney in Los Angeles to draft your pre- or postnuptial agreement.

A lawyer can ensure that your document is valid, so you will know you are covered in case you get divorced or separated.

While prenups seem a reasonably easy law in California, we have reviewed above how they can become unenforceable if they are not drafted correctly or if they include specific terms.

In other words, if you are going to make an effort to draft a prenup, you need to ensure it's enforceable by the court. The best way to do this is to get help from a lawyer who knows precisely how to draft them.

This way, you won't waste time and money attempting to include provisions that won't stand up in a courtroom. Instead, you can contact our law firm for a free case consultation via phone or through the contact form. Furman & Zavatsky are Los Angeles divorce and family law attorneys providing legal representation across California.

About the Author

Lee Zavatsky

Lee Zavatsky is a partner at Furman & Zavatsky, a law firm dedicated to the practice of Family Law. Mr. Zavatsky has been selected as one of the Top 40 Under 40 by The National Trial Lawyers, a professional organization composed of the top trial lawyers from each state or region who are under the...

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