What Can & Can't Be Included in Your Prenup

A prenuptial agreement, also known as a prenup, is a legally binding contract between two individuals who plan to marry. Prenups serve as valuable financial tools and can provide peace of mind and protection. While discussing prenups may seem challenging amidst wedding preparations, they offer assurance and security.

However, it's important to note that there are certain provisions that cannot be included in a prenup. This article will outline what can and cannot be included, offering practical advice to help you create a fair and legally enforceable agreement.

What Is a Prenup?

A prenup outlines the financial and property arrangements for a couple during their marriage. It also establishes provisions for the division of assets in the event of a divorce.

Prenups can be especially useful for individuals with significant assets or who have been married before. However, this doesn't mean they are solely for wealthy couples. Ultimately, prenups can help avoid disagreements and potential legal battles if any marriage were to end in divorce.

There are many reasons people get prenups, and a few include:

  • Partners who have business interests they want to be separate from their spouse if there is a divorce
  • Couples who want to keep significant pieces of personal property separate
  • Couples who want a plan to simplify divorce

Prenuptial agreements are tailored to each couple's specific needs; therefore, it is crucial to make sure that your prenup is catered to your relationship.

What Can You Not Put in a Prenup?

While a prenup can cover a wide range of financial topics, there are certain issues that it cannot address:

Child Custody

A prenuptial agreement cannot predetermine child custody arrangements. Child custody decisions are made by the court based on the best interests of the child at the time of the separation. Any provisions related to child custody in a prenup would be considered unenforceable.

Child Support

Similar to child custody, child support cannot be predetermined in a prenup. The court will decide the amount of child support based on state guidelines, considering the needs of the child and the financial circumstances of both parents.

Provisions that Violate the Law

Any provisions that promote illegal activities or violate public policy are not allowed in a prenup. For example, you cannot include a clause that would require a spouse to commit fraud or any other illegal act.

What Can Be Included in a Prenup?

A prenup can address various financial aspects of a marriage, including but not limited to:

Distinctions Between Separate & Marital Property

A prenup can clarify which assets will remain separate property and which will become marital property. This distinction is crucial, as it can impact how assets are divided in the event of a divorce.

Establishment or Elimination of Alimony

A prenuptial agreement can include provisions related to spousal support (alimony) payments. This can help couples establish expectations for support payments in case of a divorce or eliminate the possibility of alimony altogether.

Business Ownership

A prenup can address the division of business interests, helping protect existing businesses or future entrepreneurial endeavors from being negatively impacted by a divorce.

Spousal Responsibilities

A prenup can outline financial responsibilities for both spouses during the marriage. This might include such things as the allocation of household expenses, investments, or how joint bank accounts will be managed.

Estate Planning

Prenuptial agreements can serve as valuable estate-planning instruments, ensuring the fulfillment of your financial wishes upon your demise. It is important to supplement this with wills, living trusts, and other estate documents.

These are just a few of the important clauses that can be included in prenuptial agreements. However, there are many more that can be incorporated to tailor your prenup to your unique relationship. Therefore, it is crucial to collaborate with an experienced prenuptial lawyer to guide you through the process.

Contact Our Team to Learn More

If you're considering a prenuptial agreement, it's essential to consult with an experienced prenup lawyer. Our team at Richard A. Heller, P.A. can help you understand the intricacies of prenups and help evaluate your agreement to validate that it is fair, valid, and legally enforceable. With nearly 60 years of combined experience, our team is well equipped to help you.

Contact our team today to learn more about prenuptial agreements and how they can benefit your marriage. Dial (407) 501-4052 or fill out our online form.

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