What Should I Include in a Prenuptial Agreement?

Many people are choosing to get married a lot later in life than they used to, typically around their late 20s and early 30s. By this time, many of these same people have been in the workforce for a decade already. They’ve built careers, accumulated wealth, and maybe even own real estate.

Suffice it to say, choosing to get married when one is a little more established in life can help ensure the financial stability of the marriage. That said, choosing to get married when one is more established can also mean there’s a lot more to lose from the onset should the marriage fail.

While people sometimes have a bitter reaction to prenuptial agreements, the reality is that these premarital contracts between spouses can ensure both are protected during a divorce. That can be especially important for two people who were individually successful before getting married and wish to protect as much of their independent lives as possible.

If you’re considering whether or not to get a prenup, keep reading as we discuss some of the things that should be included in one.

Items to Put in Your Prenup

There’s a wide variety of provisions that can be included in a prenup, but this contract is most effective when it covers aspects of a marriage that involve property.

Property Division Provisions

A prenup can be used to affirm what is considered separate property prior to marriage and what will be considered community property belonging to the marriage going forward. This is important because one’s separate property is protected from consideration during a divorce, whereas community property is split 50/50.

By determining what is separate property in a prenup, it can preclude a costly legal battle to protect real estate, a savings account, an investment portfolio, or some other asset someone brought into a marriage.

Debt Division Provisions

When people think about what they have, they’re more willing to consider their assets before their debts. As with property, pre-determining how debt will be dealt with should a divorce occur is an important matter to address in a prenup.

It’s not uncommon for people to get married when they already have a significant amount of debt, especially from student loans. A prenup can affirm that although marital assets will be used to pay off this debt during marriage, any remaining debt solely belongs to the spouse who incurred it before the wedding.

Spousal Support

Sometimes a prenup can address spousal support by specifying a limit to based upon how long the spouses were married. A prenup can also require spouses to waive their right to seek spousal support at all.

Sunset Clause

A sunset clause can assuage the worries of those who may be averse to the notion of a prenup. A sunset clause is a provision that renders the prenup null and void after the couple has remained married for a certain number of years.

What Can’t Be Determined with a Prenup?

Prenuptial agreements can’t be used to pre-determine certain aspects of divorce, particularly those concerning child custody or child support. These are matters that the court will decide using the child’s best interest – not either parent’s or any agreement between them – as the determining factor.

A prenup also can’t include any terms that would encourage divorce or make it more likely for one to occur. Likewise, terms that impose obligations upon a spouse – such as having children, losing weight, or delegating chores – would be unenforceable and could undermine the whole contract.

Are Prenups Enforceable in California?

There is no guarantee that a prenup will be enforced by a judge, but that’s not to say it won’t be strongly considered. Situations in which the court will throw out a prenup typically involve contracts that contain illegal or exploitative terms that clearly protect the interests of one spouse at the expense of the other’s.

If a prenup is properly prepared, considered, and executed, then the court will be more willing to take it seriously and abide by its legal terms. Keep in mind, however, that just one mistake with a prenup can get the whole thing thrown out.

This is why it’s important to ensure your prenuptial agreement is properly prepared by competent attorneys who want to help you protect your future, like those at Claery & Hammond, LLP. When you reach out to us for help with a prenup, we’ll offer you a free initial consultation so that you can learn more about our services.

Get in touch with us online or by calling (310) 817-6904 for more information today!