What Can and Cannot be Included in Prenuptial Agreements

No one wants to think about divorcing their future spouse before they get married. However, prenuptial agreements (also called premarital agreements or prenups) help set certain terms if the marriage ends.

For instance, an individual with an established family business may seek to protect those assets from the other party in case of a divorce.

There are certain limitations to what can be included in a prenuptial agreement. This article provides an overview of what can and can not be included in prenuptial agreements.

What You Can Include in a Prenuptial Agreement

Distinctions About Property Division (Marital Property vs. Separate Property)

Each state has separate laws that govern what types of property constitute separate property and what types constitute marital property. Some states use "community property" laws, often requiring 50/50 asset splits.

Upon separation by death or divorce, the court will separate all of the marital property according to the laws of the state. To avoid a court deciding what happens to your property attained during your marriage, you can use a prenuptial agreement.

You can distinguish in the prenup which assets should be considered separate properties. This could be property from a previous marriage or real estate you owned before the marriage.

Any other property acquired after the marriage is entered will be considered marital assets and will be split by the court.

Some states allow you to decide whether you will be entitled to alimony or not. Other states prohibit this action. Check your state's law or with a family law attorney to clarify this issue when drafting the prenuptial agreement.

Protections Against the Other Spouse's Debts

Without a prenup, creditors can go after the marital property even though only one spouse is the debtor. To avoid this, limit your debt liability in a prenuptial agreement.

Provisions Providing for Children from Previous Relationships

If you have children from a previous relationship and want to ensure they inherit some of your property, you can use a prenup.

Protections To Keep Family Property in the Family

Your prenup can specify if you have a family heirloom, family business, future inheritance, or another piece of property that you want to keep in your birth family.

Protections for Estate Plans

Prenuptial agreements are only a part of ensuring that your estate plan is carried out how you see fit. Remember that you must also create and secure other documents, such as wills and living trusts.

Descriptions of the Responsibilities of Spouses

There are numerous reasons for a prenuptial agreement. Below is a list of items commonly included in prenup agreements:

• Separate businesses
• Retirement benefits
• Income, deductions, and claims for filing your tax returns
• Management of household bills and expenses
• Management of joint bank accounts, if any
• Arrangements regarding investing in certain purchases or projects, like a house or business
• Management of credit card spending and payments
• Savings contributions
• Property distribution to the survivor, including life insurance, in the event of death
• Arranging putting one or the other through school
• Settlement of potential disagreements, such as using mediation or arbitration

What You Can't Include in Prenuptial Agreements

State laws restrict what can and cannot be included in prenuptial agreements. Below is a list of things most states will not allow in prenuptial agreements:

Provisions Detailing Anything Illegal

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

Decisions Regarding Child Support or Child Custody

A prenup cannot include child support or child custody issues. The court has the final say in calculating child support. The court determines child support based on a "best interest of the child" standard.

The court can't uphold provisions of prenups that deal with child support, child custody, or child visitation. This is because it violates public policy.

The court decides what is in the best interests of the child. They would not deny the child the right to financial support or the opportunity to have a relationship with a fit parent.

Waivers of Rights to Alimony

This is the most commonly struck-down provision by courts. A few states strictly prohibit this.

Other states look down on it and limit your ability to give up your alimony rights. Some states do allow alimony waivers. Be sure to check with your own state's laws.

Provisions Encouraging Divorce

Judges scrutinize prenuptial agreements to look for anything that offers a financial incentive for divorce. The court will set it aside if a provision can be read to encourage divorce.

Courts used to view any provision detailing how the property would be divided as encouraging divorce. Society is interested in preventing divorce, which is why judges pay close attention.

Details About Personal (Rather Than Financial) Matters

A prenup can't include personal preferences. This might include provisions such as who has what chores, where to spend the holidays, whose name to use, details about child-rearing, or what relationship to have with certain relatives.

Prenuptial agreements are designed to address financially-based issues. Any provision discussing non-financial issues will not be upheld.

Judges grow uncomfortable when they see private domestic matters included in a contract. They will often view the document as frivolous, striking it down.

If you and your spouse want to agree about such things, do it in a separate document. Just know that this document would not be enforceable in court.

Get Legal Help With Prenuptial Agreements

Prenuptial agreements can benefit both parties since they solidify the terms of a relationship before problems arise.

But, every prenup should get a thorough review by an attorney before they're signed. Critical errors can invalidate part of or the entire agreement.

Find a local family law attorney today for legal advice and peace of mind.