What Can and Can’t Be Included in a Prenuptial Agreement?


Leading up to a marriage, it can be very easy to get too caught up in emotion and let logic fall to the wayside. Marriage is serious business. Therefore, whether you’re able to stay married or not, you need to have a legal agreement in place with your spouse about how you will handle certain issues you are bound to face over the course of your marriage or if your marriage ever ends in divorce. This is where a prenuptial agreement (also known as a prenup) comes in. A prenup can help you and your spouse properly plan for both a future where you live happily ever after and one where you’re at least able to end your marriage on civil terms.

What’s a Prenuptial Agreement?

A prenuptial agreement is a contract that a couple agrees to prior to getting married. Prenups generally establish the rules that a couple will follow if they ever get divorced. For the most part, prenuptial agreements cover property division and other aspects of dividing up a couple’s finances if they decide to end their marriage.

Prenuptial Agreement Do’s and Don’ts

While there are a wide range of terms that can be included in a prenuptial agreement, there are also issues that a prenup cannot cover. The complete list of items that can and can’t be included in a prenup is too long to be listed here, but some of the most important are touched on in the following list of prenuptial agreement do’s and don’ts:

  • Do include terms for how each spouse’s current and future earnings will be distributed if they get divorced.
  • Don’t include child custody or child support terms in the prenup. If a couple divorces, the court will ultimately make the final decision about child support and child custody.
  • Do include a plan for how the spouses will pay debt accumulated during the marriage if they divorce.
  • Don’t fail to disclose financial obligations and assets prior to signing a prenuptial agreement. Not disclosing all assets and financial obligations before agreeing to a prenup can lead to the agreement being invalidated.
  • Do (if one spouse owns a business, both spouses own businesses, or the spouses co-own a business) establish terms for how ownership/control of a business will be decided if the marriage ends.
  • Don’t include terms that violate state law and/or public policy, such as penalizing a spouse for not raising the couple’s children to practice a specific religion.
  • Do decide how homes, vehicles, and other personal property will be divided between the couple if there’s a divorce.

A good rule of thumb is if you aren’t sure whether something can be included in a prenuptial agreement, discuss it with an experienced family law attorney.

Can a Prenuptial Agreement Be Changed or Invalidated?

Prenuptial agreements aren’t easy to change or invalidate, but it’s not impossible to adjust their terms after marriage or prove they are unenforceable because they’re unlawful or unfair. There are several legal options in place to help ensure that prenuptial agreements are fair, valid, and properly enforced. However, discovering and taking advantage of those options can be difficult without an extensive understanding of family law.

One way to change a prenuptial agreement is with a transmutation agreement. Transmutation agreements can change how a specific piece of property included in a prenup is categorized. For example, a transmutation agreement can change an item that is considered separate property to community property or vice versa. While that may sound simple, it is not. The details of transmutation agreements must meet very strict requirements under California law before they are considered valid and enforceable.

Proving a prenup is invalid is a bit more complex than simply adjusting the agreement’s terms. However, there are a few tactics that may make it possible to get a prenuptial agreement invalidated, including:

  • Unreasonable Terms – A prenuptial agreement cannot include terms that are unconscionable at the time the agreement was signed. This includes terms that unfairly favor one spouse and/or excessively penalize one spouse.
  • Child Custody – The terms of a prenuptial agreement cannot prevent or negatively impact child support payments.
  • Hidden Assets – If one spouse did not fully disclose their assets or financial obligations prior to the couple signing the prenuptial agreement, the prenup may not be enforceable.
  • No Proper Legal Representation – Terms regarding spousal support included in the prenup may not be enforceable if each spouse didn’t have independent legal representation at the time the agreement was signed.
  • Violates State Law/Public Policy – If the terms of the prenuptial agreement violate state law or public policy, the agreement may not be able to be enforced. For instance, if a prenup includes penalties for not living up to unreasonable moral or religious obligations, it may be unenforceable.
  • Forced Agreement – If it can be proven that one spouse was forced to sign a prenuptial agreement, the prenup may be able to be invalidated.

In addition to changing a prenuptial agreement or getting a prenup thrown out, couples can agree to terms after they are already married. This is called a postnuptial agreement.

Have More Questions About Prenuptial Agreements? Contact Us!

The legal team at TRABOLSI | LEVY | GABBARD LLP has over 100 years of combined litigation experience, and as our client testimonials prove, we have the knowledge and skills to successfully help you avoid the legal pitfalls of any family law matter you are facing. If you have questions about prenuptial agreements, our family law attorneys are ready to listen and help.

To learn more about prenuptial agreements or discuss another family law matter, give us a call at (310) 455-8364 or fill out our online contact form and we’ll reach out to you right away.

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