Prenup Questions

What can't be asked/included in a prenup? For instance, infidelity clauses are accepted in the U.S.?

Prenups cannot include terms related to child custody or child support. Infidelity clauses or clauses that address substance use or gambling are generally not enforceable, as they are considered against public policy.

How to make a prenup? Do you need to hire a lawyer and/or pay any specific fees?

To create a valid prenup in California, you will both need to hire a lawyer to ensure it meets all legal requirements and is enforceable. Each party should have their own attorney to avoid conflicts of interest.

Does a prenup need to be notarized?

No, there is no legal requirement in California for notarization, but we generally recommend it.

If the couple divorce, are the terms of the prenup automatically executed, or are there situations where the law “overrules” the prenup?

Generally, the terms of a prenup are executed as written. However, a court can overrule a prenup if it is found to be unconscionable, signed under duress, or if it includes illegal or unenforceable provisions. In California, the court has recently been focused on the voluntariness of a prenup and has found that some limits on spousal support are unconscionable.

What can and can't be protected by a prenup?

In California, a prenup can define what is considered separate property and what is community property (marital property) during marriage, in the event of a divorce, and upon death. It can specify the choice of law that will apply if you divorce and address how funds will be used during the marriage, such as payments from community funds towards someone's separate property residence. You can also place limits on spousal support within a prenup. Additionally, a prenup can outline how assets will be distributed upon death, if you wish to change the default legal provisions. 

A prenup cannot include anything illegal or unenforceable, such as decisions regarding child custody, child support, or the impact of infidelity.

Who usually needs a prenup?

Everyone. But most of the prenups I work on are for people who are inheriting significant assets, own businesses, or are in their second marriage. One person having significant debt is another reason that parties choose to have a prenup.

Even if you are marrying someone more wealthy than yourself, a prenup can offer significant benefits by clearly defining financial expectations and responsibilities. For example, a prenup can specify that a house acquired before marriage remains separate property, but any increase in its value during the marriage is considered marital or community property. This is different from the law - in a generous way - but can honor the parties commitment to the wealth created during marriage. 

A prenup helps protect both parties by outlining the division of assets and debts, ensuring financial matters are handled fairly and transparently, such as distinguishing between separate and community property. An agreement can prevent misunderstandings and legal disputes, providing peace of mind and stability for both partners throughout the marriage and in the event of a divorce​​.

In simple terms, what exactly is a prenup? 

A prenuptial agreement, or prenup, is a legal contract that a couple enters into before getting married. It outlines how their assets and debts will be divided and specifies financial responsibilities during the marriage, such as who pays for what. A prenup can address scenarios in the event of a divorce, including support payments from a higher earner to a lower earner. It also considers life changes, such as unemployment or disability, and how these would be managed financially. Additionally, a prenup can include provisions related to inheritances and properties acquired before or during the marriage. This agreement ensures clarity and fairness, helping to prevent potential conflicts and lengthy legal battles in the future.

Conflict and Custody

Custody battles are often intense and emotionally draining, not just for the parents but for the children caught in the middle. Recently, I had the profound experience of hearing grown children share their journey through years of custody litigation, reflecting on how it shaped their lives from childhood into adulthood. Their stories were a powerful reminder of the long-term consequences of these legal battles.

One of the most striking aspects of their narratives was the extended period of conflict they endured. These children spent many years in litigation, speaking with numerous professionals, and navigating a tumultuous family environment. Listening to their painful experiences highlighted a critical issue: the aftermath of custody disputes can leave lasting scars.

A particularly poignant moment was when they shared how silenced they felt once the court proceedings ended. Often, once the legal system moves on, these children are left to cope with the fallout on their own. Without follow-up or continued support, they can feel abandoned and unheard. This sense of abandonment can profoundly affect their emotional well-being and development.

It's easy for us as legal and mental health professionals to lose sight of the long-term impacts of our work. We might not stay connected with the families we assist, and thus we rarely see the full trajectory of the children's lives. Questions linger: Did our interventions truly serve their best interests? What happened to them after the legal dust settled?

The children I listened to revealed that, despite the conflict, they didn't harbor negative feelings toward their parents. They recognized that both parents acted out of love and a belief in what was best for them. This realization was heartening and highlighted the resilience of these children. However, it also underscored the importance of effective communication and support during and after legal proceedings.

One key takeaway from their stories was the critical role of mental health professionals. These children benefited immensely from having therapists who provided consistent support and helped them process their experiences. Yet, many children in similar situations don't have access to such resources. As professionals, advocating for ongoing mental health support for children involved in custody disputes should be a priority.

Another significant issue raised was the trust—or lack thereof—that these children had in adults during the process. They often didn't know who to trust, as they were shuffled between meetings with therapists, judges, and other professionals without clear explanations or consistent follow-up. This lack of transparency and continuity can damage their ability to trust adults and authority figures long-term.

Reflecting on these stories, it's clear that our approach to custody cases needs to prioritize the children's voices and experiences continually. Ensuring they have access to mental health support, providing clear communication about legal processes, and maintaining follow-up can help mitigate some of the long-term negative impacts.

In conclusion, custody battles can profoundly affect children, and it's our responsibility as professionals to minimize these impacts. By listening to the children's perspectives, advocating for their mental health, and prioritizing their best interests, we can make a positive difference in their lives. The stories of these grown children are a testament to the resilience of the human spirit and a call to action for all of us involved in family law and child advocacy.