The following are some provisions which should not, or in some cases, may not be included.
1. Provisions Regulating or Controlling Personal Aspects of Marriage.
Inclusion of provisions in a premarital agreement that attempt to regulate or control personal aspects of the parties’ marriage is very strongly not recommended. Beyond the reluctance of courts to regulate such matters generally, case law has held that contracts purporting to alter the legal incidents of marriage are void and unenforceable as against public policy.
Avoid including in the agreement any provisions that relate to religious practices or instruction, particularly with respect to children, as well as provisions that attempt to regulate or punish personal behavior, or that purport to require or reward personal services between the parties.
These sorts of provisions that have been struck down by courts in the past
a. property forfeiture provision for use of illegal drugs was invalid;
b. contract imposing damages of $50,000 on spouse who is unfaithful is unenforceable as against public policy of no-fault divorce;
c. contract by which husband promised to transfer certain property to wife in exchange for in-home care of him for duration of illness;
d. services as nurse and housekeeper;
e. nursing services and companionship.
2. Duty of Support During Marriage. By statute, each spouse contracts towards the other a duty of support during an ongoing marriage, and it does not appear that this statutory duty may be waived.
3. Agreements That Promote Dissolution or Reward a Spouse Upon Dissolution. Agreements that promote dissolution are prohibited. These are usually provisions that provide a benefit for filing dissolution, e.g., an agreement promotes dissolution if it provides for a transfer of property of substantial value only in the event of dissolution.
4. Child Custody or Child Support. To the extent that they purport to dictate child custody orders, premarital agreements are not binding on the courts.
5. Waiver of Joint and Survivor Annuity or Survivor Benefits Under Private Retirement Plan Probably Unenforceable. It appears that the rights of a nonparticipant spouse to receive a joint and survivor annuity or survivor benefits under a private retirement plan following the participant spouse’s death, as distinguished from other retirement benefits, cannot be waived in a premarital agreement.
Divorce Helpline can assist with any questions regarding what is enforceable in California prenuptials; we have over twenty-years of experience in drafting prenuptial agreements. For details on prenuptial agreements check out our articles on the impact of prenuptial agreements on nuptials, common provisions, and legal requirements.