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6 Things a Prenup Can (And Can’t) Do

Before getting married, a couple might decide to define their rights and responsibilities in the event of separation or divorce. To do so, the couple would need to create a prenup. A prenup (also known as a prenuptial or premarital agreement) is an agreement between individuals who anticipate becoming married.

The law favors enforcing prenups, unless there is a good reason not to – like a contract defense, public policy reason, or another basis defined by the California Family Code. For example, contract defenses include things like duress, fraud, undue influence, and mistake. Additionally, public policy provides that prenups should not promote divorce or add “fault” to the equation in a no-fault divorce state like California

WHAT CAN A PRENUP DO?

1. DEFINE PROPERTY RIGHTS ON SEPARATION OR DIVORCE

This is the most common reason for getting a prenup. Couples are free to specify in a prenup the nature and characterization of assets, liabilities, and income as being separate property or community property. The purpose of this is to define how the couple wants their property rights to be determined if they ever separate or divorce, instead of applying the general principles of community property to the division and distribution of their estate at the time of separation or divorce.

2. LIMIT SPOUSAL SUPPORT

A prenup can limit the right to receive and the obligation to pay spousal support. Provisions in prenups placing limitations on spousal support must comply with certain requirements, like having both parties represented by independent counsel. The enforceability of spousal support provisions in prenups will be tested by whether it is unconscionable at the time of enforcement. However, there is no per se prohibition on provisions in prenups limiting spousal support.

3. WAIVE RIGHTS TO INHERIT IF EITHER SOPUSE DIES

It is perfectly acceptable and authorized to give up the right to inherit from a future spouse upon his or her death. In fact, 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.

WHAT CAN A PRENUP NOT DO?

4. ADVERSELY AFFECT RIGHT TO CHILD SUPPORT

Child support is not something that can be included in a prenup. Much like child custody, the court retains jurisdiction to make child support orders for the benefit of the minor child, and prenups cannot take away or modify the power of the court to do so.

5. CREATE PENALTY FOR INFIDELITY

If you are looking to get a cash payout when your spouse cheats, you are not in luck. Creating a penalty, whether cash or property, for infidelity is against public policy and cannot be enforced.

6. BASE PROPERTY RIGHTS ON USE OF ILLICIT DRUGS

Property rights must not be based on anything that is construed as a “fault” factor, such as use of illicit drugs. California is a no-fault divorce state. There is no need to prove fault to get a divorce. Adding “fault” to a divorce by including it in a prenup is against public policy and would not be enforced.

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