Questions regarding property division and support payments are often some of the most confusing issues faced in a divorce proceeding. California is a “community property” state—meaning that marital property is divided in divorce. There are also strict laws regarding child support and spousal support payments.
We answer all of these questions and explain how pre- and postnuptial agreements protect divorcing spouses and provide opportunities to circumvent sometimes restrictive divorce laws.
In California, the law regarding divorce states that any property obtained over the course of the marriage is considered “community property” and can be divided in a divorce property division. Some couples or individuals, however, may wish to know if there is a way around this law. Can you take yourself out of California’s community property regime through mutual agreement? The answer to this question is yes.
In fact, that is the whole point of a prenuptial agreement; you are agreeing that if there is a divorce, you are not going to have California law dictate how your post-marriage assets and income are going to be divided. By establishing a prenuptial agreement, you ensure that your property is divided in a way that best reflects your understanding as a couple, rather than the standards of the state, in a divorce.
We’ve explained that it is possible to make separate arrangements in a prenuptial agreement that supersede the community law standard. But what can you do about determinations regarding spousal support in a divorce? Can you by agreement dictate that in the event of a divorce there will not be any spousal support paid? Or can you dictate the amount of the support that will be paid in a divorce? Yes.
Again, that is the whole point of a prenuptial—or postnuptial—agreement.
You and your spouse get to make your own decisions about how your assets and obligations will be divided and your financial matters managed in the event of a divorce. Not the court. A prenuptial or postnuptial agreement is simply a way to retain your voice and autonomy rather than handing these personal matters over to the control of a family court judge. However, it is very important that the would-be husband and wife are aware of a big exception to this rule. At the time of divorce, if the court finds that provision to be unconscionable, the court will refuse to enforce it. So if, for example, at the time of divorce, the wife has become disabled, the court will ignore that provision of the prenuptial agreement.
A final question you may be asking is: Can you by agreement dictate how much you would pay for child support in the event of a divorce? Absolutely not! The difference is that the right to child support is not a right of either parent; rather, it is considered a right of the child. The right to child support belongs to the child and any agreements between the parents to limit that right are in violation of public policy.
Nevertheless, there are ways to make sure your rights and the rights of your children are adequately protected. As always, it is best to speak with an attorney about these matters. Our Southern California divorce lawyers can answer your questions and tell you more about your options regarding prenuptial agreements as well as property division and the payment of spousal support / child support.
Cases involving California divorce law, prenuptial and postnuptial agreements, spousal and child support, and property division are rarely simple. As you can see from the information provided above, these are not easy matters to resolve and they do contain exceptions. Even the exceptions—such as the example given of a wife’s disability superseding the alimony agreements in a prenup—contain factual disputes where a skilled divorce attorney can limit exposure.
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