I’m sure most of you are at least familiar with the term Premarital Agreement ( although you probably refer to it using its more common reference: a “Pre-Nup.”)
While most have heard of the term, few know understand it’s purpose or know how they work. So what exactly is a “Premarital Agreement?”:
A Premarital Agreement is a contract entered into by a couple before they marry (or before registering a Domestic Partnership). This contract usually describes what each party’s rights will be if they decide to end their marriage or if one of them dies. The most common issues covered in Premarital Agreements are those related to money, property, and support. When creating a Premarital Agreement, the parties (usually with the assistance of their Attorneys) outline, in writing, the property and/or support each party will be entitled in the event of divorce or death. However, contrary to common false belief, Premarital Agreements aren’t designed to encourage divorce or put one party at a disadvantage.
In fact, Premarital Agreements were traditionally designed to foster conditions that will help preserve a forthcoming marriage; courts believed that the availability of an enforceable Premarital Agreement would in encourage marriage. For this reason, in most states, you cannot design a Premarital Agreement however you want without regard to certain rights and obligations. Premarital Agreements that violate public policy are frowned upon by the courts and in most situations, deemed unenforceable; there are some things that a Premarital Agreement (or any other contract for that matter), cannot do:
1. Child Support: A Premarital Agreement that attempts to fix an amount or waive child support is invalid to the extent it minimizes a parent’s legal child support obligation.
2. Spousal Support– A Premarital Agreement waiving the right to receive spousal support after divorce is invalid unless each must is represented by their own lawyer and acknowledge the consequences of the waiver.
3. Premarital Agreements which require the parties to raise children in a particular religion are deemed unenforceable.
4. It’s your fault- Premarital Agreements that penalize a party for “fault” during the marriage (such as infidelity, gambling, drug abuse, etc.), is unenforceable because it is contrary to the public policy underlying California’s “no-fault” divorce laws.