3 Facts About Prenups You May Not Know
Encinitas, CA – During a divorce, it’s common for both spouses to split financial assets evenly.
Unless of course, a prenuptial agreement was signed beforehand.
A prenup is a written contract between the soon-to-be-married that lists how assets, future earnings, and even retirement accounts may be divided if the two ever divorced.
While prenuptial agreements used to be taboo to discuss with your fiancé, the documents are becoming increasingly more common in marriage unions.
And it’s not just the super wealthy who are using them. Everyday folks are using them too.
“There are many misconceptions about prenuptial agreements as far as what can, and what cannot be included,” says Encinitas Family Lawyer John Griffith.
He adds that many of his clients are surprised to hear that certain desired provisions are unenforceable by the Court in the event of a divorce.
Griffith describes three primary areas of common confusion, and he would like the opportunity to clear the air.
Three Prenup Problem Areas
A Prenup Cannot Punish a Cheating Spouse
Actress Jessica Biel reportedly signed a prenup when she married superstar Justin Timberlake that included an infidelity clause.
Reports state that Jessica will receive $500,000 if Timberlake ever cheats.
An infidelity clause is part of an overall list of lifestyle clauses that are becoming increasingly common in prenups around the country.
For instance, partners might list how much weight the other is allowed to gain or how many vacations they will take in a year.
While these lifestyle clauses can list certain ground rules for the marriage, Griffith says they have little chance of enforcement by the judge.
“A judge will not punish a spouse due to infidelity—even if the prenup says so.”
When it comes to running around behind a spouse’s back, he says “California is a no-fault state. Infidelity cannot be used as the basis for inequitable division of assets or for a loss of the right to receive financial support”
Child Custody and Visitation
Another area that cannot be legally limited in a prenuptial agreement is the area of child custody. A prenuptial agreement cannot limit the custodial rights of either parent. “The issue of child custody is always decided based on the best interests of the children and a prenup cannot preclude judicial intervention on the issue.”
“A prenuptial agreement can list expectations of child care and custody, but the judge is going to follow the law and do what’s right for the child.”
Limitations of the amount of child support included in prenuptial agreements are also invalid.
The right to receive child support is a child’s right and cannot be waived by either parent in conjunction with a prenuptial agreement. If, after separation, a parent decides that she does not want child support then she can agree that the other parent pay none. However, the waiver is not indefinite and that parent can always come back and change her mind.
Spousal Support Provisions
What if the prenuptial agreement lists provisions regarding spousal support?
Griffith says that, when it comes to the support of one spouse by the other, certain rules must be followed.
“The party who is being ordered to pay spousal support must have independent legal counsel at the time of signing the prenup agreement,” Griffith says.
Otherwise, he adds, the judge may throw the provision out.
Other rules include both parties being able to prove that they signed the document of their own free will; there cannot be any proof of duress or fraud, and both parties need to be eligible to sign a legal document in the first place.
The fact is, Griffith says, there is no promise that the provisions within a prenup or the entire document will be enforceable at all.
Griffith says that many of his clients get quite a surprise when they realize that the prenup they signed isn’t as iron-clad as they once suspected.
To learn more least-known facts about prenuptial agreements, call Encinitas Family Lawyers Griffith, Young & Lass for a free consultation at 858-345-1720.
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