Premarital Agreements - Part II

What subjects can be covered in a premarital agreement under the UPAA?

Prospective spouses can cover a wide range of issues through a premarital agreement, including:

1.Property

Under the California Family Code, all property acquired during the marriage through the time, effort and skill of either spouse is community property. (Fam. C. § 760.) At divorce, community property is divided equally between the parties. It is common for premarital agreements to provide that the earnings and accumulations of each spouse during the marriage will remain that person’s separate property (as opposed to community property). At divorce, each spouse’s separate property is not subject to division like community property. For example, Husband earns $500,000 per year from his job as an accountant and deposits those earnings in a bank account during marriage. Through a premarital agreement, Husband and Wife specify that Husband’s earnings during the marriage will remain his separate property. Therefore, when the parties divorce, Wife is not entitled to one-half of the bank account containing Husband’s job earnings.

2.Inheritance rights

A premarital agreement can also limit inheritance rights. For example, if the parties agree to waive their respective surviving spouse’s inheritance rights, and Wife passes away during the marriage, Husband cannot inherit from Wife’s estate unless otherwise provided for by a separate testamentary document.

3.Spousal Support

Parties to a premarital agreement may also waive their respective rights to spousal support after divorce. Be aware that in order for a spousal support waiver to be effective, each party must be represented by independent counsel and must enter the agreement voluntarily and with knowledge of the spousal support waiver provision.

What subjects cannot be covered by a premarital agreement?

Public policy bars certain issues from being enforceable in a premarital agreement. For example:

1.Domestic Services, Care or Companionship: One spouse cannot agree to pay the other spouse for his or her domestic services, care or companionship provided during the marriage.

2.Mutual Obligations: Agreements that infringe on spouses’ obligations of mutual respect, fidelity and support during the marriage violate public policy and are therefore void.

3.Children’s Religion: There are a number of reasons why premarital agreements cannot control the religious upbringing of children. For example, such agreements are often too vague for a court to objectively enforce. Further, enforcement of such a provision could promote a specific religion and embroil the court in religious issues. Additionally, enforcement of this type of provision would violate the First Amendment Establishment and Free Exercise Clauses because parents are free to question and change their beliefs and are free to instruct their children in line with those beliefs. (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 114.)

4.Fault: California is a “no-fault” state when it comes to divorce. In fact, the only two bases for filing a Petition for Dissolution of Marriage are irreconcilable differences and permanent legal incapacity to make decisions. Therefore, premarital agreements that penalize one spouse based on fault violate public policy. For example, a premarital agreement cannot state that Wife will not receive any spousal support after divorce if she committed adultery during the marriage. Similarly, a premarital agreement cannot state that Husband must pay a specific amount of money to Wife if he was unfaithful to her during the marriage.

5.Child support: In a premarital agreement, parties cannot waive child support or fix the amount of their respective child support obligations. (Fam. C. § 1612.) Parents have a mutual duty to support their minor children, certain adult children who are still in high school, and adult children with special needs. (Fam. C. §§ 3900, 3901, 3910.)

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