While prenuptial agreements are powerful planning tools, California law places certain limits on what they can address. Understanding these boundaries helps ensure expectations are realistic and that your agreement is both enforceable and effective.
A prenuptial agreement cannot address issues relating to children. Matters such as child custody, visitation, child support, education, religion, medical decisions, or where a child will live cannot be predetermined in a prenup. If a couple divorces and has minor children, custody decisions are made at that time based on the child’s best interests, taking into account the circumstances that exist then. Because these determinations are fact-specific and forward-looking, any provisions in a prenup that attempt to decide issues involving children are not enforceable and will not be upheld by a court.
Similarly, child support cannot be set or modified by a prenuptial agreement. In California, child support is determined by a statutory formula that is based primarily on each parent’s income and custodial time with the child or children. Courts are required to apply this formula, and parents cannot agree in advance to a different amount or method of calculation through a prenup.
California is also a strict no-fault divorce state. This means that the reasons for the breakdown of a marriage do not affect how property is divided upon divorce. As a result, a prenuptial agreement cannot include provisions that attempt to penalize or reward either party based on fault or behavior during the marriage. Clauses that impose financial consequences for conduct such as infidelity, or that require spouses to adhere to specific lifestyle choices, are generally not enforceable under California law.
Finally, a prenuptial agreement is not a substitute for an estate plan. A prenup does not determine where property goes upon death. Wills and trusts serve that function. For this reason, it is strongly recommended that couples create or update their estate plans after marriage to ensure they reflect both their marital status and the terms of their prenuptial agreement. For couples who have or plan to have children, an estate plan also allows for the designation of guardians, as well as the appointment of individuals to make financial or medical decisions in the event of incapacity.
