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7 Common Prenup Mistakes You'll Want to Avoid

By Andrew Lu | Last updated on

If you're planning to get married, you'll want to avoid making some common prenup mistakes. What do we mean by that?

Here's an example: Girl meets boy. The two fall in love. Boy proposes to girl. Girl says yes. Boy puts together a prenup with stipulations regarding finances, children, and even sex. Boy and girl sign the prenup, and get married.

Now the prenuptial agreement is in full effect. Or is it? Not everything in the agreement in the example above is necessarily enforceable. Here are seven prenup mistakes that couples commonly make:

  1. Failure to Meet Contract Formalities. A prenuptial agreement is a contract after all. And failure to meet any of the requirements for a contract such as having both parties agree to its terms and providing consideration may make the whole thing void.

  2. Agreement Made Under Duress. If you spring your honey a prenuptial agreement moments prior to saying "I do," or use coercive methods to get your partner to sign, the agreement may be rendered unenforceable as being made under duress.

  3. Waivers of Alimony Payments. The point of signing a prenuptial agreement may be to protect your finances. However, in some states, you may not make an agreement to provide no alimony. Check with a lawyer for the restrictions in your jurisdiction.

  4. Provisions for Child Custody. This determination is typically based on the best interests of the child, and not what you agreed to in a prenuptial agreement. Provisions that affect child custody are typically not allowed in prenups.

  5. Provisions for Child Support. For the same reasons as number 4 above, such provisions generally can't be predetermined in a prenuptial agreement.

  6. Sex/Chore Requirements. Yes, sex can be a chore. And just like chores, sex provisions are typically not enforceable. For example, a couple tried to incorporate a clause in their prenuptial agreement that one party agreed to have sex with the other party for a certain number of days in a week. Good luck finding a court that will enforce this.

  7. Anything Illegal. A basic tenant of contract law is that you cannot agree to do anything illegal. The same is true for prenuptial agreements. So forget about those kinky or just plain wrong provisions that you wanted included. You probably don't want these in print anyway.

To learn more about what can be included in a prenup, and how prenups generally work, check out FindLaw's free Guide to Prenuptial Agreements and our section on Getting Married.

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