What NOT to Include in Your California Prenup
Creating a prenuptial agreement in California does not have to be difficult, and it is in fact a far simpler way of addressing legal matters related to the marriage than waiting until a couple decides to divorce and trying to address them in the contention and stress of that moment. But some couples make the prenuptial agreement harder than it needs to be by trying to include topics that cannot and should not be addressed in a prenuptial agreement. Below is a brief overview of what NOT to include in your California prenuptial agreement.
Child Custody and Visitation
You should not attempt to address issues of child custody and visitation in your prenuptial agreement, as a family court will not rely on what was in the agreement. Instead, the court will make determinations of custody and visitation based on the best interests of the child at the time of the divorce, which looks at a variety of factors including each parent’s willingness to provide for the child and include the other parent in the child’s life. Note that if you already have a child when you get married, and the other spouse is not the biological parent, then that spouse will not have rights to custody or visitation unless and until the spouse adopts the child.
As with child custody, a court will not look to what a prenuptial agreement says in determining child support. In fact, child support is one area of divorce law in California that is largely in the hands of the judge (and not the parents) in determining, and he or she will do so usually by applying a county-wide formula incorporating, among other things, the incomes of the parents and the number of children.
You may have heard tabloid stories about prenuptial agreements that include “lifestyle” or “behavioral” clauses which provide consequences if one spouse commits some kind of specified act, like cheating, drinking, using drugs, or even entering a certain profession. While spouses are certainly free to make commitments of these sorts to one another, a California court is unlikely to enforce them based on the principle that doing so would admit the concept of “fault” into divorce proceedings, whereas California abolished the concept of fault-based divorce proceedings many decades ago.
Get Help From California Family Law Attorneys With Your Prenuptial Agreement
The family law attorneys at The Law Offices of Omar Gastelum and Associates, PLC, with offices in Los Angeles and Newport Beach, have many years of experience representing men and women in negotiating and creating prenuptial agreements. For help with a prenuptial agreement or any other family law matter, contact our office today to schedule a consultation.