Division of Marital Assets

What is Forbidden in a California Premarital Agreement?

By August 19, 2011 No Comments

The Implosion of the “Governator’s” Marriage:

In May of 2011 former California Governor Arnold Schwarzenegger and his wife of 25 years, Maria Shriver, announced they were separating. According to a recent CNN article, the cause of their rift was a child fathered by Schwarzenegger as a result of an affair he had with a member of his household staff nearly 13 years earlier.

As soon as Schwarzenegger and Shriver announced their separation, the question on everybody’s mind was:  Did they have a premarital (prenuptial) agreement? The answer: nobody knows for sure. If they did not, then Schwarzenegger may be in some trouble when it comes time to divide the assets. According to news channel CNN’s report, “the statement of economic interests lists Shriver’s assets – stocks, real estate, and trust funds – as ‘separate property of the spouse.’”  Conversely, Schwarzenegger’s statement did not contain any separate property items. This means that upon division of the assets, Shriver could very well walk away with half of anything she and Schwarzenegger acquired while married, while items listed as her separate property will remain hers.

This leaves many people wondering: would a premarital agreement protect against situations like this? What can I include in my premarital agreement? These are important things to consider before determining whether a premarital agreement is right for you.

Premarital Agreements in California:

Prenuptial, or premarital, agreements allow couples to decide how property will be divided and/or spousal support paid should the marriage end. These agreements must be carefully drafted and comply with specific requirements in order to be enforceable. Essentially, a premarital agreement is a contract, and is therefore governed mostly by the principles of contract law.

Many people wonder if there is anything that the law forbids them to include in a premarital agreement. For the most part, premarital agreements can include practically anything, from division of property upon divorce to financial responsibilities during the marriage. However, there are certain provisions that the law says cannot be included, and that are unenforceable if they are included.

Every jurisdiction is different with respect to what may and may not be included in a premarital agreement, but in California, a premarital agreement cannot waive either spouse’s rights to child custody or child support.  The agreement also cannot require either spouse to do anything illegal or unconscionable.  It is legal, however, for a premarital agreements to provide that the entire agreement is unenforceable after a certain number of years of marriage, or to provide for a change in the division of assets as the marriage continues over the years.

No matter how you approach your premarital agreement, it is crucial to have adequate legal representation to prepare it and to advise you of the risks you are undertaking and the benefits you will receive.  For preparation of a premarital agreement, or advice on an agreement that has been prepared by a lawyer representing the person you intend to marry, please contact one of our skilled divorce, support, and custody attorneys here at Minella Law Group today. Call (619) 289-7948 to schedule an appointment. We look forward to helping you.