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What a Pre-Nuptial Agreement Can and Cannot Do

A pre-nuptial agreement (also called a “pre-nup”) is a legal contract between two people who intend to get married. This document defines each party’s respective rights and obligations, should the marriage eventually go down the path of divorce or legal separation.

Can be used as evidence in a court of law

In California, pre-nups are governed by rules outlined in the Uniform Premarital Agreement Act. Such an agreement can be drafted to address present and future property rights, as well as either party’s future entitlement to spousal support and (in a very limited sense) issues relating to any children the couple might have.

In a court of law, the pre-nuptial agreement represents a contract that may be enforceable or, at the least, used as evidence of what each party intended at the time they got married. While the court may find reason to invalidate a part or parts of the pre-nup, the document can still be used as evidence of each individual’s prior intentions.

To make the pre-nup more enforceable, it must (a) be drafted under the rules of the Uniform Act and (b) include a stipulation that, at the time of creating the agreement, each party receives a full financial disclosure form the other party—including a complete list of assets, debts and respective incomes. Each party must then be allowed seven days to review the document prior to signing it, during which they can, and should, seek the advice of an attorney if they don’t already have one.

Make the best decision for your future

What can be included in a pre-nup:

  • Under California law, almost anything acquired during the marriage, be it income, property or debts, is presumed to be community property. This means either party is entitled to half of the assets or responsible for half of the debts, regardless of who actually acquired them. In some cases, a pre-nup can alter that presumption—not only by defining assets coming into the marriage as the separate property of the person bringing them into the relationship, but also by identifying a person’s acquisitions during the marriage (wages, bank accounts, etc.) as being in that party’s separate property.
  • Both parties may agree on either a waiver of spousal support or other limitations on one person’s entitlement to spousal support—that is, the maximum amount of support allowed or the maximum duration of payments of spousal support allowed.
  • The parties may agree on other terms of support that courts don’t usually consider, such as a child’s eventual college expenses. The pre-nup can stipulate that one party will assume the burden of paying those expenses, an issue usually beyond the court’s jurisdiction.

What cannot be included in a pre-nup:

  • Any terms deemed “unconscionable”—for example, a plastic surgeon earning $500,000 a year is unlikely to be permitted to insist on a waiver of spousal support from his fiancé, a teacher in the public school system, who earns vastly less.
  • Provisions pertaining to child custody, visitation and child support terms are not allowed in this document.
  • A pre-nup cannot include terms of “punishment,” such as “If he cheats on me, I get damages of $50,000.”

Should couples intending to get married have a pre-nuptial agreement? The answer varies depending on the individual circumstances, but I believe it’s always a good idea to know what you’re bringing into the marriage and what you’d like to have, should the marriage come to an end. Whatever the case, enlist the services of an experienced attorney to make sure you arrive at the best decision about your future.

Getting married or just have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from family law, bankruptcy, debt collection defense, estate planning, criminal defense, DUIs, and general civil matters.