Not All Prenup Provisions Are Enforceable

A prenup — or, more formally, a prenuptial agreement — is an agreement entered into prior to marriage that lists the property each party owns and specifies what each party’s property rights will be upon the dissolution of the marriage. They can be an effective tool for couples looking to minimize property disputes upon the dissolution of their marriage. Contrary to popular belief, not all prenups are ironclad and strictly enforceable.

Commonly Enforced Prenup Terms

The purpose of a prenup is to clarify the financial rights of each party and the division of property upon the dissolution of the marriage. As such, the terms of most prenups generally are restricted to financial matters. Some of the most common provisions in prenups concern:

• Identification of each party’s assets
• Definitions of separate property and community property
• Management of marital bills, expenses, and debts
• Payment of educational expenses
• Alimony payments
• Mediation or arbitration requirements

Regardless of the terms in a particular prenup, the guiding principle is that the prenup should concern primarily financial matters and be entered into in good faith and with full disclosure.

Unenforceable Terms

While courts generally are willing to enforce most prenups as written, there are certain provisions that can render the agreement invalid, such as:

Involuntary Agreements

Prenups must be entered into voluntarily, and the law strongly encourages each party to be represented by counsel when executing one (although this is not required). Evidence that the agreement was procured by fraud, duress, or undue influence is grounds to invalidate the agreement. Courts may also invalidate prenups if they are unconscionable or if either party was not provided with a fair, reasonable, and full disclosure of the financial assets of the other party.

Provisions that Violate Public Policy

As with all contracts, provisions that violate public policy objectives are unenforceable. Examples of provisions that violate public policy are provisions that obligate a party to engage in illegal activity, provisions that are discriminatory, and provisions that prevent one party from exercising a legal right.

Provisions Concerning Child Custody or Support

If child custody and support are at issue, the divorce court has the final say in determining both based upon the best interests of the child. Therefore, any provisions concerning children — such as provisions dictating custody, visitation rights, and child support amounts — are unenforceable.

Certain Alimony Waivers

Provisions concerning alimony are one of the most common prenup provisions. Not all states enforce alimony waivers, but California does. However, the party against whom the alimony provision is sought must have been represented by independent counsel at the time the agreement was signed in order for any alimony provision (including alimony waivers) to be enforceable.

Provisions Governing Marital Conduct

Provisions governing the conduct of each party during the marriage are not enforceable. These types of provisions typically concern child-rearing duties, the nature and frequency of sexual relations, and one or both spouse’s physical appearance, among others.

Contact an Orange County High Net Worth Divorce Lawyer

While prenups can be beneficial for any couple, they are particularly useful for high net worth individuals due to the value of the financial assets at stake. To learn more about drafting a strong prenup, please contact an Orange County high net worth divorce lawyer by calling us at 949-474-0800.

Frequently Asked Questions

Which premarital agreement provisions will a California court not enforce?

Anything that purports to limit child support is unenforceable, because that right belongs to the child rather than to the parents. Provisions setting custody or parenting arrangements in advance are not binding, since custody is decided on the child’s best interest at the time. So-called lifestyle clauses, penalties for infidelity, weight requirements, and similar terms are generally unenforceable as against public policy. A spousal support waiver is enforceable only under narrower conditions than the rest of the agreement.

What makes a spousal support waiver hold up or fail?

Two separate requirements, at two different times. The provision is not enforceable against a party who was not represented by independent counsel when the agreement was signed. And even with independent counsel, it is unenforceable if the court finds it unconscionable at the time enforcement is sought. That second test measures the provision against circumstances at the divorce rather than at signing, so a waiver that seemed reasonable years earlier can fail after a long marriage or a change in health or earning capacity.

What formalities does California require for a valid premarital agreement?

The agreement must be in writing and signed by both parties, and it is deemed involuntary unless specific conditions are satisfied: the party against whom enforcement is sought was represented by independent counsel or expressly waived that right in a separate writing, had at least seven calendar days between first receiving the agreement and signing it, and, if unrepresented, was fully informed in writing of the terms and the rights being given up in a language they understood. There must also be fair, reasonable, and full disclosure of property and financial obligations, or an express written waiver of it.

If one provision fails, does the entire agreement fail?

Not necessarily. Where the defect is confined to a particular provision, such as an unenforceable support waiver, a court may strike that term and enforce the remainder, particularly where the agreement contains a severability clause. Where the defect goes to the execution itself, involuntary signing or a failure of the presentment and counsel requirements, the whole agreement is at risk. That is why a challenge should be framed to the actual defect, since attacking one provision and attacking the agreement as a whole require different proof and produce very different results.