It's an oft-cited fact that roughly half of all marriages end in divorce. There's nothing wrong with acknowledging that reality - and preparing for its possibility - by utilizing a prenuptial agreement. In fact, prenups can set the stage for a stronger relationship by encouraging honesty, full disclosure, thoughtful planning and an awareness of what's at stake.
However, not all prenups are created equal. A sloppily drafted or procedurally inadequate agreement could fall apart when you try to enforce it. The last thing you need when your marriage is crumbling is for the prenup to crumble, too.
So what goes into a valid prenup in California? There are two key aspects to consider: the provisions of the agreement itself and the manner into which it's entered.
What prenups can (and can't) cover
Prenuptial agreements typically address property rights. Instead of letting courts decide which property is separate versus community, you can set aside your own property, creating clear expectations upfront. You can also alter certain inheritance rights. As a result, prenups are especially useful in second (or subsequent) marriages involving blended families.
Certain issues, however, are off-limits. These include:
- Child support obligations
- Child custody arrangements
- Penalties for a spouse who's "at fault" in ending the marriage (for example, through infidelity)
- Attempts to eliminate a spouse's right to financial support while the parties are still together
One hot-button issue - alimony - requires treading carefully. Spousal support provisions are enforceable only if both parties consulted with their own attorneys before signing the prenup.
Additionally, provisions that are extremely one-sided and unfair might get thrown out in court. This is more likely to happen if one spouse is at a disadvantage - for example, when there's a glaring disparity in education, earning capacity, bargaining power and the like.
The wrong way to enter a prenup
It seems obvious, but you can't just spring a prenup on your fiancé(e) the night before the wedding. As binding contracts that drastically affect your rights, these agreements must be thoughtfully considered and entered voluntarily. That means:
- Both parties must have ample time (at least seven days) to seek legal counsel.
- If one party decides not to consult with an independent attorney, he or she must waive that right separately, in writing.
- There must be a full and fair disclosure of both parties' financial situations (unless waived in writing).
As you can see, how one enters into a prenuptial agreement is almost as important as the provisions of the agreement itself.