What Terms Are Not Enforceable in a Prenuptial Agreement

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Premarital agreements, or prenuptial agreements, are favored by the court and are intended to “foster or perpetuate conditions that will help preserve a forthcoming marriage.” Agreements executed before January 1, 1986 are not required to conform with the Premarital Agreement Act (UPAA Fam. Code §1600 et seq) and similarly, agreements executed before 2002 are not required to conform to the various amendments made to the UPAA after 2002. A prenuptial agreement can be used to alter each spouse’s property interests and inheritance rights, and to limit or eliminate rights to spousal support.

The importance of mutual financial disclosures: UPAA amendments that took place in 2002 increased the obligation of each party to make financial disclosures to one another during the negotiation and preparation of a prenuptial agreement.  For example, a party challenging the enforcement of a prenuptial agreement as “unconscionable” must show among other things that he or she was not provided a “fair, reasonable, and full disclosure” of the other party’s property or financial obligations. 

Currently, the courts have held that the following terms in a prenuptial agreement are barred from enforcement as they violate public policy:

  1.  Agreements to pay for domestic services/companionship. Marriage of Bonds (2002) 24 C4th 1, 25.
  2. Agreements altering the mutual obligations during marriage of mutual respect, fidelity and support.
  3. in a particular religion.
  4. Agreements penalizing party for “fault” during marriage.
  5. Agreements abrogating statutory child support duty

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One Response to “What Terms Are Not Enforceable in a Prenuptial Agreement”

  1. AffiliateLabz

    Great content! Super high-quality! Keep it up! 🙂

    February 15, 2020 - 11:16 pm #