Prenuptial agreements have become increasingly common. One of the apparent reasons is that, more frequently, spouses are entering marriage with children and property from a prior marriage. As a result, their concern is to preserve preexisting property rights and interests for their own children, and to simplify the divorce process if the new marriage does not last.
Drafting a prenuptial agreement (also referred to as premarital agreement) requires specific language and disclosure of information between the potential spouses. Ensuring that your prenuptial agreement is enforceable is key, so here are a few tips to follow:
Child Custody & Visitation: A prenuptial agreement that places a limitation on how the court can handle child custody and visitation orders is unenforceable. For example, the following provision would not be accepted because it limits the court’s ability to modify legal custody: “If the parents file for divorce, Mother shall forever maintain sole legal custody of the minor children.” Since the state has an overriding interest in the welfare of minor children, the parties cannot agree to divest the court of its jurisdiction to make orders pertaining to legal custody, physical custody, and/or visitation.
Child Support: A prenuptial agreement setting or waiving child support is unenforceable. For example, the following provision would not be accepted: “In the event of a divorce, Mother shall never be required to pay child support to Father.” Since both parents have a duty to support their minor children, which extends beyond the marriage, the court has continuing jurisdiction to make child support orders that are in the child’s best interest.
Spousal Support: A prenuptial agreement cannot validly waive the mutual duty of support owed between spouses while they are married and living together. For example, the following provision would be unenforceable: “Under no circumstances shall Husband have to provide support for Wife during the marriage.” However, in the event of a divorce, a premarital agreement can set limitations or include a complete waiver of spousal support, so long as certain requirements are met.
Religious Upbringing: A prenuptial agreement between parents that includes a provision to control the religious upbringing of their minor child is unenforceable based on the First Amendment. For example, the following provision would not be accepted: “In the event of a divorce, the parents agree that their child shall be raised under Christian faith and not be allowed to practice any other religion.”
Penalty for Fault: A prenuptial agreement that includes a penalty against the spouse who caused the marriage to breakdown is unenforceable. For example, the following provision would be unenforceable: “If either spouse is unfaithful during the marriage, that spouse shall pay the other spouse a penalty of $50,000.” California is a no-fault divorce state, so any provision that violates that public policy is not allowed.