Prenuptial agreements and their function can be confusing. Here’s what to know about what a California prenuptial agreement can and can’t do.
Prenuptial agreements are contracts engaged couples to enter before marriage, put into effect once married. Prenups can outline the property rights and obligations of each party throughout marriage and the property division in divorce. However, prenuptial agreements cannot include illegal activity or terms in violation of public policy, and can not always be enforced.
What Does California Law Say About Prenuptial Agreements?
California Family Code 1610-1617, the Uniform Premarital Agreement Act, defines valid prenuptial agreements to be “between prospective spouses made in contemplation of marriage and to be effective upon marriage.” Prenuptial agreements are typically made to protect spouses’ finances and assets.
California code defines property as a present or future, legal or equitable, and vested or contingent interest in real or personal property, such as income. The Uniform Premarital Agreement Act gives the parameters and limitations of California prenuptial agreements.
What a California Prenup CAN Do
Valid and enforceable prenuptial agreement terms can fall under any one of 7 categories. A prenup contract with terms and conditions in respect to each category is valid and legally enforceable upon marriage. Prenuptial agreements can be amended or revoked by a written agreement if a spouse does not want to abide by all written terms, or if there are issues with a clause.
Prenups can be made with respect to spouses’ rights and obligations to owned property. Couples can state which present or future property each spouse will be entitled to. A premarital agreement can include clauses stating each spouse’s right to use, manage, or control property, including death benefits from a life policy.
The agreement can outline property division in the case of divorce or marital dissolution, for example, and can keep the property in a spouse’s possession shielded from potential spousal theft.
California code includes provisions regarding terms signed to in a prenuptial agreement. California permits prenuptial agreements to contain terms regarding the creation of a will, trust, or another arrangement. Couples can choose whether a prenup should abide by California or a different state’s jurisdiction. California thus gives spouses the opportunity to decide how to enforce the contract and what legal code the terms abide by, whether from California or any other jurisdiction.
Related: What to Include in a California Prenuptial Agreement
California law also states prenuptial agreements can contain terms not illegal or in violation of public policy, allowing for prenuptial agreements to have a wide range of enforceability and ensuring couples may add conditions.
Related: 9 Steps to a Fair Prenuptial Agreement
What a California Prenuptial Agreement Can NOT Do
While the scope of prenuptial agreements initially seems vast, California law may limit what they can contain. An invalid or unenforceable prenuptial agreement includes terms restricted by the California Uniform Premarital Agreement Act.
Prenuptial agreements cannot include any matter in violation of public policy, including terms requiring religious upbringing of a future child or provisions penalizing a spouse for not abiding by moral standards of conduct. Public policy also ensures prenuptial agreements cannot encourage or promote divorce by offering one spouse unparalleled financial benefit, such as a stipulation of how much money one party is entitled to upon divorce and terms of a property highly benefiting them.
California further prohibits prenuptial agreements from introducing terms about illegal matters, such as exploitative language or specifications about compensation in return for illicit services. A judge may not enforce an unfair prenuptial agreement. An unjust prenup may benefit one spouse more than the other or include fraud and partial disclosure of property. Judges might also deem agreements incorporating non-financial requirements and terms regarding the relationship to be unfair.
California family courts may not enforce prenuptial agreements including:
- Terms adversely affecting child or spousal support, such as waivers of liability
- Lack of legal counsel at the time the provision was signed
Unreasonable terms
Related: Should I Sign this Prenuptial Agreement? Read This
Prenuptial agreements are not always enforceable and certain instances may make them immediately unenforceable, such as if a party did not voluntarily agree to the terms with a seven calendar-day waiting period between when the agreement was presented and when it was signed. The agreement will also be deemed unenforceable if a court decides it to be unconscionable, for example, if a party did not have knowledge of the other spouse’s property or financial obligations.
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If you or a loved one would like to know more about what a prenuptial agreement can and cannot do in California, get your free consultation with one of our divorce attorneys today!