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What Can Parties Contract to In Prenups?

by Steve Fritsch on November 5, 2012

Premarital agreements or prenups are becoming more popular.  One of the first questions asked is what can the parties contract to in a premarital agreement?  This is an important question because if the marriage does dissolve you do not want to believe that you agreed to terms on an issue and then find out it is not enforceable.

What may the parties contract to?  The first area parties may contract to is “property”.  In other words, parties may agree that certain property is the husband’s and certain property is wife’s and other property is community property.  Parties may also agree as to the management and control of assets.   For example, the parties can state in their premarital agreement that Husband will manage the business and have complete control over the business.  The third area parties may contract to in a prenup is the disposition of assets upon divorce or death.  Parties may also agree that the parties shall create a will but a party cannot force the other party to do what they said in their will while they are alive.  Choice of law is the next area parties may contract to.  In other words, the parties may chose the state the laws will be enforceable.  This means the parties may agree that their prenup is to be enforced under the laws of California.  Therefore, if the parties later move to Kansas, it still must use California laws to enforce the terms.  The final and probably the most asked area is spousal support or alimony as called in the other states.  Under California law, the parties can agree to waive spousal support in their prenup so long as the party that waived spousal support had independent counsel and it is not unconscionable at the time of when it is being enforced.  What this means is that the court may not enforce a spousal support waiver if during the dissolution proceeding it deems the waiver unconscionable.    In other words, if any attorney tells you that the spousal support waiver is “bullet proof” that statement is not accurate and you should not assume the court will allow the waiver upon a dissolution of marriage.  Always make sure your future spouse takes the prenup to a separate attorney to review it.

What can you NOT agree to in a prenup?  Child support is a “no, no”.  For example, if the prenup says that if the parties have children and get a divorce that child support shall not exceed $500/mo.  This is unenforceable no matter what.  In California, child support is according to guideline and does not matter what was agreed to.  Custody/visitation also cannot be agreed to in a prenup.  For instance, you cannot say that upon dissolution the parties shall follow a 50/50 custody plan consisting of a week on, week off.  This too is unenforceable for obvious reasons.  The custody and visitation must be in the “best interests” of the child and if the court believes a different parenting plan is in child’s best interests than that will be the court order despite what the prenup says.

It is important that if you are getting married and want a prenup, to contact an attorney who is experienced in drafting prenups to ensure that the correct terms and language are inserted.  For example, a “severance clause” is absolutely necessary which states that if any section is deemed unenforceable, that section, not the whole prenup, is unenforceable.   Although there are many other issues to be concerned about when drafting a prenup, knowing what you and your future spouse can contract to is the first step.

Disclaimer:  The above article is for informational and educational use only and should not be relied on as legal advice in any way.  If you need legal advice you should seek the assistance of an attorney.

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