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Joseph R. Zoucha, Attorney & Counselor at Law

What subjects can a prenuptial agreement cover?

Spring is a popular time for weddings in California. However, while wedding planning can be romantic, there is one task that many couples choose to get done before they walk down the aisle: executing a prenuptial agreement. Prenups may not be very romantic, but they are practical and address the reality that each party should be protected in the event of a divorce.

It is important to understand what subjects a prenup can cover, and what subjects will be unenforceable. In general, prenups address financial issues. This includes which party is to retain which property -- both separate and marital -- in the event of a divorce. It can also address who has control over these assets while the couple is married. For example, the couple might agree that either both or one of them has the right to manage or sell certain assets. Prenups can cover the making of a will or trust that addresses the provisions included in the prenup.

However, non-financial issues generally cannot be enforced through a prenup. For example, prenups generally cannot contain any provisions regarding child support and child custody that adversely affect the child's rights and are not in the child's best interests. And, while prenups can address spousal support, courts can limit or strike down provisions in which one spouse waives the right to spousal support entirely. Also, prenups cannot be so one-sided as to be unconscionable.

Prenups can be very useful for soon-to-be-wed couples of any wealth and of any age who want to protect their property interests should the marriage not last. However, it is importantly that they are carefully drafted in a way that is both fair to each party and legally enforceable. For this reason, California law generally requires that each spouse is represented by a separate attorney. These professionals can ensure that all the necessary information between the spouses is shared and that their clients understand the provisions of the agreement, so they can make choices that are in their best interests.

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