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What to Know About Prenuptial Agreements : Part 4

If you are entering into a prenuptial agreement (aka prenup) in California, we highly recommend that you do not include any provisions in the prenup regarding child custody, visitation or child support. 

For an explanation of what is a prenup, see What to Know About Prenuptial Agreements : Part 1. 

It is not uncommon for couples who are signing a prenup to contemplate terms that will apply to any children they currently have or that they may decide to have in the future.  Couples may want to include provisions in their prenuptial agreement that address what child custody, visitation will be and how much child support either party will need to pay upon divorce or legal separation. 

However, we advise against putting any provisions in a prenuptial agreement that you are signing in California that relates to child custody, visitation or support. 

Here’s why…

California law prohibits the inclusion of child support provisions in a prenuptial agreement, see California Family Code Section 1612(b) and taking away the Court’s authority to determine child custody and visitation.  If these provisions are in a prenup, then the court has the authority to invalidate the provisions and declare them null and void. Additionally, the court may invalidate the remaining provisions of the prenup and declare the full agreement null and void (you should talk to an attorney about the importance of a severability clause in your agreement). Therefore, it is not worth taking the risk of including these provisions as it could cost additional time and money should a court order the prenuptial agreement unenforceable. 

If you have any questions about prenups, please call us for a free 30-minute consultation. 

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Attorney Jeffrey P. Mach, Jr. is a Certified Family Law Specialist in the state of California.  Mr. Mach is not a specialist in any other state. 

Information provided on our website does not constitute legal advice. This blog and video are strictly for informational purposes and not for the purpose of providing legal advice. Please be advised, the law is constantly changing.  If you need legal advice, please contact your lawyer and they can answer your legal questions with respect to a particular issue or problem. Nothing posted or anything herein forms an attorney-client relationship.  This a communication/solicitation/advertisement.  Mach Law does not make any guarantees, warranties, or predictions regarding the result of representation.