California prenuptial agreements can address a wide range of financial matters — but they have important limits, and certain provisions that parties attempt to include are unenforceable even if both parties agreed to them. Understanding what can a prenup include California, whether a prenup can waive spousal support, and what makes a prenup invalid helps couples create agreements that will hold up when needed.
What a California Prenup Can Include
Prenup protect assets California couples primarily use premarital agreements for: designating property owned before marriage as remaining separate property rather than converting to community property if it otherwise would; specifying how income earned during the marriage will be treated — community or separate; protecting anticipated inheritances or gifts; specifying how property will be divided if the marriage ends in divorce; limiting or waiving spousal support; and allocating specific debts to specific parties. Prenup income California provisions can specify that each spouse's earnings during marriage remain that spouse's separate property rather than becoming community property — a significant departure from California's default rules.
Can a Prenup Waive Alimony in California?
Can a prenup waive alimony California? Yes — with an important exception. Family Code section 721 allows premarital agreements to limit or eliminate spousal support. However, a prenup spousal support waiver California courts will not enforce if the waiving spouse would otherwise be eligible for public assistance at the time the waiver is sought to be enforced. Courts also scrutinize support waivers for unconscionability — a waiver that leaves a spouse destitute after a 30-year marriage may be deemed unconscionable even if it was signed voluntarily.
Prenup validity California for support waivers requires independent legal counsel for each party, full financial disclosure at the time of signing, and that the waiver not be the product of duress or undue influence. A support waiver signed the night before the wedding, after the other party had no opportunity to review the agreement with independent counsel, faces serious enforceability challenges.
What Makes a Prenup Invalid in California
An invalid prenuptial agreement California courts will not enforce includes agreements that: were not in writing; were signed without adequate time to review (California requires at least 7 days between presenting the final agreement and signing); were signed without the opportunity for independent legal counsel (or waiver of counsel in a specific writing); were procured through fraud, duress, or undue influence; or contain provisions that are unconscionable. Challenge a prenup California courts allow on any of these grounds — the burden is on the challenging party to establish the basis for invalidity.
What a Prenup Cannot Include
A California prenup cannot: determine child custody or child support in advance; include provisions that violate public policy; waive certain rights that cannot be waived by contract; or include terms that would apply retroactively to past conduct. Courts apply particular scrutiny to any prenup provision that appears to incentivize divorce or that was designed to take advantage of a party who lacked complete information about the financial consequences of what they were signing.
Furubotten Law, APC drafts and reviews prenuptial agreements throughout Orange County and Riverside County. Call (714) 795-3862 for a complimentary consultation before signing any premarital agreement.