Limitations of Prenuptial Agreements

A prenuptial agreement is an agreement that is meant to work out financial terms and post marital expectations as well as to preserve both party’s assets as separate property.  The role of prenuptial agreements has increased in the past few years with more and more people trying to protect their assets legally.

Prenuptial agreements, also known as premarital agreements, basically outline the post divorce assets and finances that each of the spouse will be entitled to. These are drawn up usually by wealthier spouses to keep hold of more than a portion of the wealth they have built up, but also upper middle class individuals.

There are a few things that prenuptial agreements can do and some that they can’t. Here is a list of some of a few of the limitations on what prenuptial agreements can do.

Spouses Cannot Be Punished For Using A Prenuptial Agreement

No spouse can be punished using a prenuptial agreement. This is because the State of California continues to be a no-fault divorce state. This means that generally even though a spouse may have been unfaithful, the other generally cannot use the prenuptial agreement to punish them.

Yet, there can be some exceptions such as in the case of a spouse who physically or verbally abuses the other spouse. A spouse that is proven to be abusive can be punished using the prenuptial agreement and be refrained from receiving the finances and the support that he or she is entitled to.

Prenuptial Agreements Are Not Entitled To Change Child Support And Child Custody

When couples go through an Orange County divorce, the family courts decide on the cases of using the California Family Code. Keeping this in mind, while prenuptial agreements can define the division of assets etc., when it comes to the issues of children in divorce, the scope of prenuptial agreements is limited.

Family law courts don’t allow the agreements to overall or make determinations concerning child custody, child support, and child visitation.  Prenuptial agreements can have a say with regard to the property and spousal support only.  Yet, in matters related to the children, the final authority lies with the courts. This action is meant to protect the best interest of the child at all times.

Prenuptial Agreements Are Not Allowed To Reign Over Day To Day Affairs

Prenuptial agreements have been primarily made to protect the division of assets between the two spouses and hence it is restricted in its ability to dictate day to day affairs between the spouses. Any issue that interferes with the choice and free will of the spouses is not allowed to be in a prenuptial agreement. An example can be the number of children to be born out of the wedlock.

Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.