What Cannot Be Included In A Prenuptial Agreement?

Prenuptial agreements, commonly referred to as prenups, are legal contracts signed by two people before they are married. They go into effect as soon as the marriage is made legal. Prenuptial agreements largely outline financial details that will go into effect if the couple gets a divorce in the future. While there are certain terms that can be included in a prenup, such as alimony and how property will be divided, there are also certain provisions that cannot be included in these contracts. Below, our Santa Clara County family law attorney explains what these provisions are.

Child Support

Child support belongs to the child, not the parent who receives it. Child support is intended to cover child-related expenses such as food, clothing, and shelter. Due to the fact that it belongs to the child, parents do not have the right to waive child support. A family law judge will determine a fair amount of child support based on what is in the child’s best interests.

Provisions that Encourage Divorce

Prenuptial agreements cannot include provisions that offer a financial incentive, such as valuable property or gifts, in the event of divorce. If a prenup includes these types of provisions, a judge will likely void that section, or they may void the entire agreement altogether.

Non-Financial Terms

Again, prenuptial agreements largely determine a couple’s financial situation should they get divorced in the future. As such, non-financial terms will not usually be upheld by the courts. For example, prenups cannot include the division of household chores, where to spend family vacations, or details regarding the children’s upbringing.

Confidential Information

Prenups cannot include confidential information such as trade secrets, a person’s medical records, or any other information one or both partners would like to keep confidential. When this information is leaked to others, it can have very serious consequences and so, it is important to protect it.

Violations of Public Policy or the Law

You cannot include any provision that violates public policy or the law. For example, if a premarital agreement enforced certain religious standards on one party, that is a violation of public policy. Everyone in California, and throughout the country, has the right to practice any religion of their own choosing and so, forcing something else on them is against public policy.

Waiver of the Right to Spousal Support

Certain terms regarding spousal support, or alimony, are allowed in a prenuptial agreement. However, there are specific requirements that must be met before either spouse can waive their right to alimony in a prenup. The court may view a waiver of the right to alimony as being unfair to the party who is deserving of it and so, they may strike these provisions if they are found unconscionable.

Our Family Law Attorney in Campbell Can Draft Your Prenuptial Agreement

At Hepner & Pagan, LLP, our Campbell family law attorney can draft a prenuptial agreement that is fair, enforceable by the courts, and that provides the protection you may one day need. Call us now at 408-429-8336 or reach out to us online to schedule a consultation and to speak to one of our skilled attorneys.

Source:

leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=4.&title=&part=5.&chapter=2.&article=2