What can a prenup include in California? What cannot be in a prenup? These questions are critical for couples planning to sign a premarital agreement. California's Uniform Premarital Agreement Act (Family Code sections 1600–1617) specifies exactly what prenuptial agreements can and cannot address.
What Can a Prenup Include?
What can a prenup include in California: characterization of property (designating which assets will remain separate property during the marriage); management and control of separate and community property; division of property upon divorce, death, or other specified event; spousal support — including waiver, limitation, or modification of the amount and duration; making a will or trust to carry out the agreement's provisions; ownership rights in a death benefit from a life insurance policy; choice of law governing the agreement; and any other matter not in violation of public policy or criminal law. Prenup and debt: a prenup can specify which debts are each spouse's separate responsibility. Prenup protecting business: a prenup can designate a premarital business as separate property and exclude business appreciation from community property.
What Cannot Be in a Prenup?
What cannot be in a prenup in California: child custody or child support provisions — courts will not enforce these because child support belongs to the child and custody is always subject to the child's best interests at the time of divorce; provisions that encourage divorce (termed "promoting dissolution"); terms that are unconscionable; any illegal provision; and provisions waiving rights to notice or disclosure. A prenup and children cannot predetermine custody arrangements — courts retain independent authority regardless of what the prenup says.
Spousal Support Waiver in a Prenup
A prenup and spousal support waiver is enforceable in California if: the waiving party was represented by independent counsel at the time of signing, or waived that right in a separate writing after being advised to seek counsel; the waiver was not the product of fraud, duress, or undue influence; and enforcing the waiver would not be unconscionable at the time of enforcement. Furubotten Law, APC drafts and reviews prenuptial agreements throughout Orange County and Riverside County. Call (714) 795-3862 for a complimentary case evaluation.