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Requirements for Valid Prenuptials and Allowable Subject Matter


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11/28/2013
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Many couples enter into prenuptial agreements in California. However, there are strict requirements that have to be met in order for a prenuptial to be effective. Prenuptial agreements that were entered into on or after January 1st, 1986 have three basic requirements. First, the agreement must be in writing. Second, the agreement must be signed by both spouses. Lastly, unlike a normal contract, nothing has to be exchanged in order for the prenuptial to be effective. Prenuptials that were made on or after January 1st, 2002 have two additional requirements. First, prenuptials affecting spousal support (alimony) cannot be enforced against you unless you were represented by your own lawyer at the time. Second, even if you had a lawyer, grossly unfair prenuptials cannot be enforced against you either.
Prenuptials can cover a broad range of subject matter:
    •    The spouse’s right to property. Upon divorce, Jane will keep her family home.
    •    Choice of law. Upon divorce, the laws of the State of Nevada will apply.
    •    The making of a will. If Jane dies first she will make a will that will provide for Dick’s children.
    •    The ownership rights and disposition of death benefits from a life insurance policy. Jane will collect the proceeds of Dick’s life insurance policy if he dies before her.
    •    Any other matter as long as it does not violate public policy or the law. Dick and Jane will always attend Thanksgiving at Dick’s parent’s house.
The only specifically prohibited thing that a prenuptial cannot cover is child support, i.e. Jane will be solely responsible for child support upon divorce.



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