Kevin Qualls Family Law
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What topics can be included in a prenuptial agreement?

Marriage is a time of romance, and Orange County couples getting ready to marry may be more caught up in their wedding plans than on their married life after the ceremony is over. One thing they may want to consider, however, is drafting a prenuptial agreement (prenup). While prenups are not romantic, they are practical, especially if the marriage does not last.

Under California Family Code, Section 1610-1617, a prenuptial agreement can cover a number of topics. First of all, it can cover each party's rights and obligations with regards to their property, either obtained before or during the marriage and wherever it is located. This includes each party's right to purchase, sell, use or in other ways manage and control the property. A prenuptial agreement can also have provisions covering how the property will be divided should the couple separate, divorce or should one of them die.

Prenuptial agreements can also cover the making of an estate planning document, such as a will or a trust. It can also cover who has ownership and disposition rights to any life insurance death benefits. A prenup can include a choice of law provision that governs the creation of the prenup. Finally, a prenup can include other provisions, so long as they are not in violation of public policy or illegal.

However, there are some things a prenup in California cannot do. It cannot adversely affect a child's right to child support. Moreover, if a prenup has provisions regarding spousal support, such as a provision waiving spousal support, this will not be enforceable, unless the spouse against whom enforcement of the provision is being sought was represented by his or her own independent legal counsel when the prenup was signed. Such provisions also cannot be enforced, if they are unconscionable at the time a party is trying to enforce the prenup.

No one getting ready to walk down the aisle expects that one day they will divorce. But, it is a reality for many couples. Therefore, it is better to be prepared with a well-drafted prenuptial agreement.

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