Many couples will choose to sign a prenuptial agreement prior to marriage. These agreements can specify the division of assets in the chance of divorce, and it can be a sort of safety net to protect you and your spouse’s individual contributions to the marriage, like property and earnings. In this blog, we will talk about what terms are included in a prenuptial agreement and elements that are not enforceable by the agreement alone.
What Is Included in a Prenuptial Agreement?
The Uniform Premarital Agreement Act (UPAA) states that written prenuptial agreements signed by both parties can cover a couple’s present and future property rights, as well as other matters related to the marriage. It can’t, however, negatively affect a child’s right to child support or take away a court’s power to control child custody and visitation after marriage.
Like standard contracts, prenuptial agreements require valid consent, where a person must have the mental ability to consent, and that consent cannot be the result of fraud, inappropriate influence, or mistake.
As of 2002, California prenuptial agreements under the UPAA can be enforced against a spouse only if that spouse:
- received complete information about the other spouse’s property and finances prior to signing the agreement;
- had at least 7 days between first receiving the agreement and signing it (to allow enough time to have an attorney review the agreement); and
- was represented by a separate attorney when signing the agreement, unless they:
- received full information in writing about the terms and basic effect of the agreement, including any rights and obligations the agreement would nullify; and
- signed a separate document acknowledging receipt of such information, identifying the person who provided the information, and waiving the right to an attorney.
Be aware that even if all of the above requirements are satisfied, if the spouse did not employ an independent attorney, any provision in the agreement affecting rights to future spousal support will not be enforceable. However, provided that the agreement meets the above requirements, the couple can agree to modify, or even completely give up, rights to spousal support in the event of a divorce, as long as the result is not unfair at the time (for example, if one spouse would be forced to turn to welfare while the other still had ample means to provide support). Courts have also stated that any waiver of alimony will be enforced only between spouses of equal education and intelligence and who were both self-sufficient in property and earning ability at the time of the agreement.
In addition to waiving spousal support, each spouse in an agreement can decide to change the nature of separate or community property. That is, if one spouse owned a house separately before marriage, the couple can agree to make it community property between them instead in the case of a divorce. Spouses can also agree conversely that community property like earnings during the marriage, which would ordinarily be divided equally in the event of a divorce, is separate property. Spouses might further choose to waive inheritance rights and include specific provisions in a will or trust, provided that such agreements don’t negatively impact the support rights of any minor children.
What Is Not Included in a Prenuptial Agreement?
Certain rights can’t be compromised in a prenuptial agreement because of other legal requirements. The agreement can’t include anything that is illegal or against public policy, such as their children's rights, which remains under the control of courts that will act according to the best interests of the child in the case of divorce. In other words, courts will always have the authority to make decisions for your child in a divorce; this cannot be compromised in a prenuptial agreement.
A couple can elect, however, to provide a child with more support than the law requires. For example, they can agree on how to divide responsibility for a child’s future college expenses. Agreements about how to raise children won’t generally be binding between parents either. A court probably wouldn’t enforce a premarital agreement to raise the children in a certain religion following divorce, for instance.
Recall that California courts don’t consider spousal misconduct or fault in the division of property or award of spousal support in divorce, so any agreement that tries to penalize one spouse for "fault" during the marriage will not be legally enforceable. Further, public policy prohibits agreements that would alter the relationship duties of marriage like mutual respect, fidelity, and support. For example, an agreement to pay compensation for "companionship" isn't valid, because that is inherently a duty of marriage.
Contact Claery & Hammond, LLP for Legal Guidance
If you have legal questions about drafting a prenuptial agreement or concerns about the enforceable terms of your agreement, contact an experienced attorney for guidance. Our family lawyers at Claery & Hammond, LLP can take a look at the terms of your prenuptial agreement and clarify any elements that may or may not be in your best interests.
Contact us at Claery & Hammond, LLP to schedule your free consultation today!