What you can and can’t include in a California prenup

| Dec 3, 2020 | Prenuptial and postnuptial agreements

Stand on the San Clemente Pier and watch the sun go down in a blaze over the Pacific Ocean; take a slow hand-in-hand stroll among the restaurants and shops of Balboa Island; put two straws in a Ruby’s Diner milkshake at the end of the Huntington Beach Pier.

Those are just a few of the romantic things you can do with your betrothed in Orange County. One of the least romantic things you do here is to bring up the subject of prenuptial agreements.

Setting expectations in the event of divorce

While discussing a prenup isn’t nearly as nice as watching a sunset or sipping a shake, prenups help couples – especially couples in which at least one person has accumulated assets – set expectations for property division in the event of divorce.

This is an area of the law that often overlaps with estate planning. For example, if one or both parties has children from a prior marriage, a prenuptial agreement (also called an antenuptial agreement) can specify how various elements of property would be divided if the couple were to divorce. This could include assets acquired either together or separately.

While an inheritance is typically considered separate property in California – even if it’s received during marriage – the income earned on an inheritance can still be counted as income available to pay for items such as child support, spousal support (alimony) or your former spouse’s attorneys’ fees.

Prenuptial agreements can’t include . . .

However, a couple can state in a prenuptial agreement that inheritances are not to be considered when determining spousal support or legal fees. It should be noted that California courts will not uphold child support restrictions in prenuptial agreements – those terms are simply unenforceable.

Courts also don’t allow parents to include custody terms in prenuptial agreements.

Though prenuptials can include agreements on assets acquired together or separately, spousal support and property division, a prenup that’s drawn up hurriedly might include agreements that won’t later be enforceable.  For example, an attempt to restrict the court’s ability to order spousal support may be unenforceable if divorce litigation arises and the court deems such restrictions unconscionable.

It therefore makes sense for couples to begin discussions well before wedding bells are due to ring, and for the soon-to-be spouses to have separate counsel who can advise on enforceability in the best interests of their clients.

Remember as well that sometimes changes in circumstances can affect prenuptial or postnuptial enforceability. Terms that are reasonable and fair in 2020 can be altered by events, actions and circumstances, and later be viewed in a different light by one of the parties – and by the court.

While married couples can’t create prenuptial agreements, they do have the option of creating postnuptial agreements that can help them avoid difficult disputes over the division of assets in a divorce. However, postnuptials can, like prenuptials, have enforceability issues that should be addressed by a family law attorney familiar with your circumstances.