Everything You Can't Put In A Prenup

Everything You Can’t Put In A Prenup

by | Aug 22, 2018 | Divorce

Planning for a possible divorce, even before getting married, can be awkward. Putting together a prenuptial agreement–commonly called a “prenup”–usually means working with an attorney and clearly specifying what each person will or will not be entitled to in the event that the marriage does not last.

Most of the time, a prenup is used to protect money and assets that one spouse acquired prior to the marriage from being considered marital property. Anything specifically exempted from marital property is then no longer subject to an equitable division of assets in the event of a divorce.

Sometimes however, the terms of a prenup veer off into “questionable” legal territory. When this happens, it runs the risk of making the agreement invalid. For those who are considering a prenup and are wondering what legal constraints they face, here’s everything you can’t put in a prenup:
 

Anything Illegal

Every state prohibits you from including anything illegal in your prenuptial agreement. In fact, doing so can put the whole prenuptial document or parts of it at risk of being set aside.

This means that neither spouse can specify that the other is required to say or do anything that violates state and/or federal laws in the prenup as a condition of maintaining the marriage.
 

Child Support And Custody Provisions

A prenup cannot include any provisions regarding child support or child custody. Those decisions are the sole domain of the courts. The courts determine support and custody based on the best interests of the child, which is based on a variety of factors.

No court would uphold a provision in a prenup that dealt with child support, child custody, or visitation rights. These are issues of public policy. Courts retain the exclusive power to decide what is in a child’s best interest and will not deny a child the right to financial support or the opportunity to have a relationship with a fit parent.

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Alimony Waivers

Generally speaking, a prenup cannot force one spouse to waive their right to alimony. Many prenuptial agreements try and get away with this kind of provision, and it’s the one that is most commonly struck down in courts.

Different states have different rules about limiting or waiving alimony rights, so it’s important to consult with an attorney when crafting a prenup.
 

Divorce Incentives

Occasionally, certain provisions of a prenup will be written in a way–whether intentional or not– that may offer a financial incentive for divorce.

The courts will typically set aside any provision that can be read as encouraging or incentivizing divorce. In the past, courts viewed any agreement that detailed how property would be divided as encouraging divorce. While this view has changed somewhat, judges still pay close attention to any provisions that include division of assets.
 

Personal Rules And Requirements

A prenup is specifically for financial matters, and cannot be used to dictate how one spouse must live or behave during the marriage. A prenup cannot specify, for example:

  • Required physical attributes
  • Frequency of sexual relations
  • Visits from inlaws
  • Whose name to use
  • Child rearing details
  • Where to spend holidays

Basically, anything not related to financial matters cannot be included in a prenup. Those who do try and get away with personal provisions run the risk of the agreement being thrown out.
 

Creating A Strong And Legal Prenup

Prenuptial agreements can be beneficial for both parties, since they solidify the terms of a relationship and marriage before problems arise.

But every prenup should get a thorough review by an attorney before they’re signed, since the cost of critical errors in the document could cost one or both of the parties later. Contact Vonder Haar Law Offices today for some peace of mind.

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