What a Prenup Can’t Do


There was a time when most people believed that a prenuptial agreement was only for celebrities and the wealthy. However, they are becoming more commonplace today with people trying to protect assets.

That being said, there are many misconceptions on what a prenuptial agreement is, what it covers, and what it doesn’t. One of the most important constraints that must be kept in mind is that no part of a prenuptial agreement can violate any state or federal laws or go against “public policy.” Even if both parties agree to a term in the agreement, it will be rendered void if it violates any of these laws.

An example of this is child support. Any clause that attempts to interfere with child support would violate state and federal laws on child support and would therefore be unenforceable. The prenup can include responsibilities that go above the level of support that is required by law and can also include provisions for extra funding (such as college tuition). However, it cannot go below the minimum regulated amounts.

Under California law, a spouse’s misconduct or fault cannot be considered in the division of property or spousal support. Essentially, the prenuptial agreement cannot be used to punish a spouse in the event of a fault in the marriage (e.g. provisions such as if one spouse is unfaithful, then the other gets an unfair share of the community property or loses any rights to spousal support) are not permitted.

Since a prenuptial agreement cannot violate public policy, it cannot define relationship duties within the marriage. As an example, an agreement that would put a condition on such things as mutual respect, fidelity, emotional support, or companionship would be void as these are already considered duties of a marriage.

It is also important to remember that when a couple signs a prenuptial agreement, they are not yet married at the time, so any part of the agreement that would require spousal consent would be unenforceable. An example would be if the agreement included a clause that stated that one spouse would give up the right to share in an ERISA-governed employee benefit plan. Since only a current spouse is permitted to give up that right, the required forms can only be completed once the couple has been legally married.

Under California law, each party must have either independent legal counsel or explicitly waive it before signing a prenup. There must also be a minimum of a 7-day waiting period between the date that the prenuptial agreement is delivered and when it is signed. That period is set in order to allow the document to be reviewed by legal counsel to ensure that all of the requirements are met. Even if the agreement is signed and appears to be valid, the court has the right to modify or decline to enforce parts if they are deemed unfair to either party.

If you are considering getting a prenuptial agreement drafted, the safest path to avoid future confusion is to have your agreement examined by an attorney that is dedicated exclusively to practicing family law. If you are considering drafting a prenup in California, contact the Law Offices of Kayleene H. Writer, PLC at (949) 353-6151! We will guide you through the process with compassion and efficiency.