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Let's assume this hypothetical scenario where:

  1. to-be husband does not want to enter marriage without prenup agreement that clearly ensures separate property; AND
  2. to-be wife does not want to have children unless they are married without a prenup.

So as "middle path" to-be husband offers to guarantee 100K one-time payment for each biological child in case they get divorced (payable at the time of divorce). To-be wife find such offer compelling too.

Can something like this be legally realized with a prenup agreement in California?

Would such offer be constructed as incentive for to-be wife to file divorce? Hence deemed unenforceable? Also, this one time payment would not be intended as waiver for child support, but rather as something extra. Can such offer be constructed as waiver for alimony?

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It looks to me as if the word "reward" is very misused here.

The to-be husband who wants a prenuptial agreement to keep their finances separated likely wants this because he's got a lot of money that he doesn't want to share with a divorced wife. The to-be wife doesn't want to be left in the rain with half a dozen children in the case of divorce.

So all they do is agreeing that in the case of children and divorce, the separation of money isn't complete. That's not a reward. Without prenuptial, she would get half his money anyway, so he just keeps less money for himself if there are children.

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  • I don't doubt that I may have misused word "reward". I guess what you are saying is that one way to make husband and wife satisfied in this case is to create a joint bank account(?) and husband has to pay into that account let's say 200k and then in case of divorce and children split it 50:50? Rest of husbands assets according to prenuptial agreement would stay his and hence don't need to be split. Though is there a way to give peace of mind to wife that husband actually sends money into this joint account after each child instead of leaving $0 in "joint assets"?
    – Jankovich
    Commented Apr 26, 2018 at 0:06
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Yes, it can be constructed in such a manner as to be enforceable. It may require some lifting on your part to find the right lawyer and the right approach, however.

You simply need to find a lawyer qualified for the specific goals your trying to achieve.

So begin by searching for lawyers that have a strong technical proficiency within the divorce/prenuptial agreement area or practice.

The lawyer you select, in addition to the strong skill sets in the area of practice of prenuptial agreement construction, should also have a strong relationship with the court of jurisdiction. It’s amazing what a strong relationship with the judge and officers of the court can accomplish.

I’ve seen lawyers accomplish goals that were stated as “impossible” and “never been done in this jurisdiction” all because of the strong relationships the lawyers had with the decision makers in the court of jurisdiction.

The question isn’t, can it be done and enforced?

The real question is how much will the lawyer that can get the job done charge for the service, and can I afford the costs?

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I'm not particularly strong on family law, but this seems unenforceable for a couple of reasons. I can update with case cites later, but generally speaking, California does not allow prenups that promote divorce.

It might depend on the underlying financial situation, but assuming there are kids to trigger this clause, I think a $100,000 bonus could be considered a strong enough inducement.

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    divorcenet.com/states/california/ca_art27 "A couple can agree, however, to provide a child with more support than the law requires." If this 100$ reward is worded as "extra support for child needs", then would that work? Anyway, would be interested to see how court has ruled in similar cases.
    – Jankovich
    Commented Apr 23, 2018 at 22:54
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    Why would a $100k bonus be a bigger inducement than half of the estate payable in case of no prenup?
    – Greendrake
    Commented Apr 24, 2018 at 7:55

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