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Can we put child support restrictions in our prenup?

On Behalf of | Mar 17, 2023 | Child Support

Celebrity marriages and divorces are constantly in the news, especially with the prevalence of reality television highlighting celebrity life. One of the results is that prenuptial agreements are also in the news, which has been a good result. A question that often comes up when Carlsbad, California, couples discuss prenups is whether they can include child support restrictions.

How does the subject come up?

Prior to meeting with an attorney, couples usually Google prenups and talk about what they may want in theirs. When couples are hashing out the details, the spouse who makes more money will usually want to limit their child support obligation. And, the other spouse may be amenable to this for many reasons, whether for love or otherwise.

Premarital agreements under California Family Code

Chapter 2 of the California Family Code, Section 1612, explains prenups (Premarital Agreements). In that section, state law allows couples to create prenups that affect their property interests both present and future, including their right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of or otherwise manage and control property.

California Family Code also allows for prenups to control the disposition of property. This can be at divorce, but it can also be at separation, death or the occurrence or nonoccurrence of any other event. It can also mandate the creation of a will, trust or other legal instrument.

You can even include provisions limiting or waiving spousal support. However, the spouse giving up or modifying their right to spousal support must be represented by independent counsel when the prenup is signed. Otherwise, the provision waiving or limiting spousal support is statutorily unenforceable.

Moreover, your Carlsbad, California, prenup can affect life insurance and death benefits and can even have a choice of law provision to interpret the prenup under the laws of another state. And, prenups can include just about any other matter. This includes personal rights and obligations, but it cannot include anything that is in violation of public policy or that violates a criminal statute.

Child support

Nonetheless, what you cannot include in your prenup is anything that adversely affects your Carlsbad, California, child’s right to child support. Why? Because the right to child support is a right of your child, not the right of the parent who receives the child support on behalf of the child.