What Can and Can’t Be In A Prenuptial Agreement

The range of what can be in a prenuptial agreement is flexible and can accommodate most of the individual wants and desires that a marrying couple may have. On the other hand, there are some strict rules about what cannot be in a prenuptial agreement.

Generally, a prenuptial agreement can deal with the following:

a) division of property on divorce;

b) whether particular items are considered community property or separate property;

c) ownership of the marital residence;

d) responsibility for premarital debts;

e) distribution of property on death (although you also need to update your estate planning documents to reflect his);

f) alimony obligations (in most States);

g) financial responsibilities during the marriage;

h) under which state’s law the prenup is (otherwise it will be the state of the divorce, and not the marriage);

i) how disputes about the prenup are to be resolved (for instance through mediation or arbitration); and

j) sunset clause - many couples allow that their prenuptial agreement will not be valid if they are married for a certain number of years.

However, there are a number of limitations to the prenup.

This agreement cannot deal with:

a) custody of the children (this includes things such as in what religion to raise the children, their schooling, etc.);

b) visitation to the children;

child support;

c) anything “illegal” (as with most contracts); and

d) anything “unconscionable” (unfair)

e) anything that is thought to encourage divorce;

Although most states permit prenuptial agreements to deal with alimony, a court is allowed to invalidate the alimony provisions if the judge believes them to be unjust. This will normally occur in long term marriages if there is a great disparity between spouses’ incomes and no or little alimony being paid..

THOUGHT OF THE WEEK

“Life begins when a person first realizes how soon it will end.”