A prenuptial agreement is a contract between two people who plan to enter into a marriage. Over the years, people have tried to put a lot of different things in that contract, but not everything is appropriate or legal. Unfortunately, when prenups have illegitimate terms, those terms won’t be enforced — or the entire contract could be thrown out. That means you don’t get what you’ve bargained for.
Think of a prenup as a contract about financial and property matters. One of the most common mistakes people make is to try to include provisions about child custody, parenting time and child support. The family courts have direct authority to rule on matters involving the best interest of children and their support, so such terms won’t be honored by the courts.
Here are a few things that can be included in a prenup:
- Setting out each person’s personal property, which won’t be divided in the event of divorce
- Similarly, setting out family property that will be kept in the family
- Other instructions for how marital property would be divided in a divorce
- Protections against your spouse’s preexisting debt
- Provisions to ensure your estate plan is carried out as you expect
- Descriptions of the financial responsibilities of each spouse during the marriage
- A determination of when alimony would be ordered
Here are some items that generally can’t be included in a prenup:
- Decisions about child support and custody
- Agreements to completely waive alimony
- Provisions that create a financial incentive for divorce
- Personal preferences, such as the division of labor, holiday plans or other domestic issues
In addition to looking at what you’ve included in the agreement, courts will also look at whether there was any fraud, mistake, duress or unconscionability in the prenup. If, for example, one party was pressured into signing the agreement on the eve of the wedding, the court may not uphold that agreement.
Bringing up a discussion about prenups can be awkward, but doing so demonstrates a positive sense of financial responsibility. Ideally, married partners should be able to talk about any serious subject. Don’t let hesitation keep you from protecting your business, your children, or your other assets as you enter into your marriage.
