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Community Property • Altering Character of Assets by Agreement
CPROP#038
Legal Definition
Terms within a prenuptial agreement that "promote divorce" (i.e., create a positive incentive for divorce) will be invalidated.
Plain English Explanation
The purpose of invalidating terms in a prenuptial agreement that promote divorce is to uphold the sanctity of marriage. Society values commitment in marriage, so offering incentives to get divorced undermines that. However, people should still be free to agree to financial arrangements in a prenuptial agreement. The key is that those arrangements can't make divorce clearly more financially rewarding than staying together. So offers of property, assets or money triggered by a divorce would be canceled by a court while terms related to finances during the marriage would likely be enforced. The idea is to let spouses manage their assets without encouraging divorce.
Hypothetical
Hypo 1: Bob and Amy sign a prenuptial agreement before getting married. In the agreement, Bob insists on including a clause that says Amy would receive a large sum of money if they divorced within five years. Result: This clause is invalidated because it creates a financial incentive for Amy to consider ending the marriage prematurely, which is contrary to the principle of discouraging divorce.
Hypo 2: Bob and Amy's prenuptial agreement states that if they divorce due to Amy's infidelity, she would lose her right to any shared property. Result: This term would generally be considered valid as it does not incentivize divorce but rather addresses the consequences of specific actions within the marriage.
Hypo 2: Bob and Amy's prenuptial agreement states that if they divorce due to Amy's infidelity, she would lose her right to any shared property. Result: This term would generally be considered valid as it does not incentivize divorce but rather addresses the consequences of specific actions within the marriage.
Visual Aids
Related Concepts
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What are the requirements for a proper prenuptial agreement, and what are the exceptions?
What are the two main types of unconscionability claims and who decides on them?