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What Can and Cannot Be Included in a Prenuptial Agreement?

Prenuptial agreements allow individuals to protect their assets in the event a marriage goes south. In the state of California, many regular people create these agreements, which are signed by both parties and legally binding upon marriage. If you or your fiancée or significant other is interested in creating a prenup before marriage, here is a list of what you can and cannot include:

You Can Use a Prenuptial Agreement to:

  • Outline financial separation. Marriage naturally combines the responsibility of certain assets between spouses, but a prenuptial agreement can keep certain assets legally separated and ineligible for court division during divorce proceedings.
  • Protect heirlooms. Similarly, if you want to keep a piece of furniture, jewelry, or another heirloom on your side of the family, an agreement will safeguard those items.
  • Protect inheritances. If you have children from a previous marriage, a prenup can ensure they receive an agreed upon amount of property in the event that you die.
  • Protect your spouse from debt liability. If a prenup separates your debts from your spouse, creditors cannot hold him or her responsible if you die or become delinquent on payments. 
  • Prepare for an unexpected divorce. While no one who gets married expects to go through a divorce, preparing for one ahead of time can prevent the divorce process from getting too messy. It can also prevent the state from interfering and dividing certain assets you have not agreed upon.
  • Waive or modify spousal support. In the event you get a divorce, you can use a prenup to change your rights to spousal support. If both parties are financially independent, waiving or modifying spousal support terms may prove fair and eliminate some of the complexity of any future divorce proceedings. 
  • Negotiate the financial terms of your marriage. This may sound like an odd way to use a prenuptial agreement, but it can help both spouses maintain accountability in their formal relationship. You can agree upon tax matters, the payment of bills, bank account considerations, and other disputes that might arise during marriage beforehand. The agreement can provide a clear outline for responsibility.

You Cannot Use a Prenuptial Agreement to:

  • Incentivize divorce. The agreement is intended to make the marriage more successful, not tear it apart. If a court determines the agreement precipitated the divorce petition, it may not abide by its terms.
  • Determine future parental support, rights, or custody issues. If you add anything regarding these issues into the document, the courts will not honor it.
  • Negotiate non-financial marriage terms. You cannot use a prenup to assign laundry responsibility or determine how family members will refer to you. The agreement is only legally binding for certain financial considerations.
  • Anything unfair or illegal. Anything the court holds is unfair to one party or another or illegal is not contractually binding. Your attorney can help you determine if any of the terms of the agreement are not supported under California law. Certain situations that may occur at the time of divorce may also render parts of the contract void. For instance, if your spouse would end up on welfare without spousal support, the court may void the waiver of support in the agreement.

A legally binding prenup can help or hurt the future of a marriage. Each couple is different and needs to look at the benefits and drawbacks of agreeing to this type of arrangement ahead of time. Both parties must consent to the agreement and sign a legally binding document, following the general principles of contract law. If you have any questions or concerns regarding what is on a prenuptial agreement contract, contact an experienced family lawyer for help.

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