Some couples might decide to define their rights and responsibilities before getting married in the event of separation or divorce. To do so, the couple would need to prepare and sign a prenuptial agreement. Such an agreement, also known as a prenup or premarital agreement, is an understanding between two individuals who anticipate getting married.
California law generally favors enforcing prenup agreements, unless there is a good reason not to – such as a contract defense (duress, fraud or mistake), public policy reason, or another basis under the California Family Code.
Below are 3 Things a Prenup Can Do
Below are three things a prenup agreement can do:
1. Define Property Rights on Divorce or Legal Separation
One of the most common reasons people get a prenup is to define property rights in the event of a divorce or legal separation. As part of a prenup, couples can specify the nature and characterization of assets, liabilities, and income as being separate property or community property. This will define how the couple will have their property divided if they get a divorce, instead of applying the general principles of community property to the division and distribution of their estate.
2. Limit Spousal Support
A prenuptial agreement can also limit the right to receive and the obligation to pay spousal support. For these provisions to be enforceable, they must comply with certain requirements, such as both parties being represented by independent counsel at the signing of the agreement. The enforceability of spousal support provisions in prenups is tested by whether it is unconscionable at the time of enforcement.
3. Waive Rights of Inheritance If Either Spouse Dies
As part of a prenup, either spouse can give up the right to inherit from a future spouse upon his or her death. Such a waiver of rights in the deceased spouse’s estate can be enforced under the Probate Code, even if the underlying prenup is determined to be unenforceable.
3 Things a Prenup Cannot Do
Below are three major things a prenuptial agreement cannot do:
1. Negatively Impact the Right to Child Support
A prenup cannot adversely affect the right to child support – meaning, neither spouse can agree what to do or not to do with regards to child support. A court retains jurisdiction to make child support orders for the benefit of the minor. Neither spouse can take away or modify the power of the court to do so.
2. Create Penalty for Infidelity
A prenup cannot create a penalty, whether cash or property, for infidelity. This is against public policy and cannot be enforced.
3. Base Property Rights on Use of Illicit Drugs
A prenuptial agreement also cannot base either spouse’s property rights on anything that is construed as a “fault” factor, such as the use of illicit drugs. Since California is a no-fault divorce state, there is no need for either spouse to prove fault to get a divorce. As such, adding “fault” to a divorce as part of a prenup is against public policy and unenforceable.
Call an Experienced Central Valley Family Law Attorney
If you are planning to devise or sign a prenuptial agreement, it is in your best interest to consult with an experienced family law attorney to help you learn your legal rights and options.
For more information or to schedule a complimentary consultation with Central Valley family law attorney Gurjit Srai, please call (209) 323-5558 or (559) 449-1447, or complete our online form.