In California, one of the most powerful tools for protecting a spouse’s assets in a divorce is a prenuptial agreement. Prenuptial and postnuptial agreements are legally binding documents that can prevent a judge from having jurisdiction over how a couple divides assets and debts in a divorce case. Learn what can and cannot be included in a California prenuptial agreement to ensure the validity of your legal document and the protection of your property.
What Cannot Be Included in a Prenuptial Agreement?
A prenuptial agreement is created before a couple gets married. It goes into effect the day of the union. The point of a prenuptial agreement is to set the terms of a divorce with your future spouse in case the marriage ends. This legal document allows one or both parties to protect their assets from division in case of a divorce. It also has the power to determine other matters that may arise in a divorce case. However, there are limitations to what a prenuptial agreement can legally include.
In California, a prenuptial agreement cannot create enforceable terms regarding:
- Child custody and visitation
- Parenting time
- Legal custody
- Child support
- Spousal responsibilities
- Waiving the right to alimony
- Childbearing requirements
- Provisions that encourage divorce
- Illegal acts
- Non-financial requests (maintenance of a certain weight or hair color, sexual relation requirements, in-law visits, etc.)
Some of these provisions could put a child at risk by failing to protect his or her best interests, while others are illegal by nature. The courts will not uphold any of these terms if they exist in a prenuptial agreement. If a document does contain unacceptable terms, part or all of the agreement may be ruled invalid and unenforceable by the family courts.
It is important to make sure your prenuptial agreement does not contain any terms that are not allowed by law if you wish to have a strong and enforceable legal agreement. The best way to ensure a valid prenuptial or postnuptial agreement is to hire a family law attorney in San Diego to help you draw up the official document.
What Can Be Included in a Prenuptial Agreement?
Most people create prenuptial agreements with the main goal of protecting assets. A prenuptial agreement can include terms that protect a spouse’s property from division. Prenuptial agreements can be especially important for many couples in California, as the state laws that pertain to community property law will divide all shared property down the middle in a divorce case, even if this is not what is fair for a spouse.
A prenuptial agreement can include terms involving:
- Protections against other spouse’s debts. A prenuptial agreement can identify and separate one spouse’s debts from the community. This can prevent one spouse from absorbing the other’s debts in a divorce.
- Protections of assets. Although a judge cannot touch separate property, such as inheritance or gifts, all other assets acquired during the marriage are subject to division. The exception is if a prenuptial agreement specifically protects these assets from going to one spouse. A prenuptial agreement can allow one spouse to protect heirlooms, family property and other assets.
- Property distribution during divorce. A prenuptial agreement can also include details on how the couple will divide community property and debts in the event of a divorce. If the marriage does end, a judge will honor the terms of a valid prenuptial agreement rather than creating a new decree for property division.
For more information about what a prenuptial agreement in California can and cannot include, as well as legal advice and assistance to fully protect your rights with a valid prenuptial agreement, contact a family law attorney near you. A marital property attorney that specializes in family law can create a valid and legal prenuptial agreement that will be enforceable by law should your marriage ever end in divorce.