What Cannot Be Covered in a Prenuptial Agreement?
Prenuptial agreements are becoming increasingly popular among couples looking to safeguard their assets and clarify financial expectations before entering into marriage. However, it’s essential to be aware of the limitations of these agreements, particularly when it comes to matters involving children. In this blog, we’ll summarize the key points from Jane’s Tuesday Tip video on what cannot be covered in a prenuptial agreement.
Custody and Visitation: The Court’s Jurisdiction
One of the most significant areas that cannot be predetermined in a prenuptial agreement is child custody and visitation. While it might be tempting to lay out arrangements for your children in advance, the court will always retain jurisdiction over these matters. This means that any decisions regarding custody and visitation must be made with the best interests of the child in mind and cannot be predetermined by a prenup.
The best interests of a child can change over time. For instance, unforeseen circumstances, such as a parent’s inability to safely care for a child, may arise. In such cases, the court must have the flexibility to adjust custody and visitation orders as needed. Trying to circumvent this by including such terms in a prenup would not be enforceable, as the court has the final say in all matters concerning the welfare of the children.
Child Support: Always Modifiable
Another critical aspect that cannot be decided in a prenuptial agreement is child support. Unlike spousal support, which can be predetermined in a prenup, child support is subject to a specific set of guidelines and is always modifiable based on the circumstances of the parties involved.
In California, child support is calculated using a guideline formula. This formula considers various factors, including the income of both parents, the time each parent spends with the child (timeshare), and additional costs like health insurance and daycare. Because these factors can change over time, the amount of child support is not something that can be locked in through a prenuptial agreement. The court retains jurisdiction over child support to ensure that the child’s needs are met based on the current situation.
Property and Spousal Support: Areas You Can Decide
While you cannot determine child custody, visitation, or child support in a prenup, there are other areas where you do have more control. Prenuptial agreements are particularly effective for addressing property issues. You can outline how assets and debts will be divided in the event of a divorce, as well as what property is considered separate or community property.
Additionally, you can decide on spousal support (alimony) ahead of time. This can include waiving spousal support altogether or agreeing on a specific amount or duration. However, it’s important to note that any provisions regarding spousal support must be fair and cannot leave one party in a situation of severe financial hardship.
When to Contact JWB Family Law
Prenuptial agreements are powerful tools for protecting your assets and clarifying expectations in a marriage, but they have limitations, especially when it comes to matters involving children. At JWB Family Law, we specialize in family law and can guide you through the process of drafting a prenuptial agreement that is both legally sound and tailored to your specific needs.
Contact Us
If you have questions about what you can and cannot include in a prenuptial agreement, we offer free consultations. Our team is ready to assist you in securing the financial support your family needs. Call us at (619) 234-6123 or visit our website to learn more.
For more insights on this topic, you can also watch our informative video here.
