Despite what the movies and media will have you believe, a prenuptial agreement is not a document that allows you to get your way completely in a divorce. Rather, it is a legal contract between you and your significant other that, if the time comes, enables you to part ways with as little conflict as possible.
A prenuptial agreement lays out the terms of both your union and a possible divorce. It can help you protect your non-marital assets, your right to certain marital property and your interests. However, there are several other things it cannot do, too. For your convenience, FindLaw breaks down exactly what a prenuptial agreement can and cannot do.
What your prenup can do
A prenuptial agreement can do a lot to simplify your divorce and protect your rights throughout the process. Among other things, this single document can do the following:
- Give directions for property distribution upon your divorce
- Provide provisions that protect the inheritance of children from other marriages or unions
- Protect you from assuming liability for your spouse’s debt and vice versa
- Protect family wealth and property from distribution
- Distinguish between marital and nonmarital property
What a prenup cannot do
For all a prenuptial agreement can do, there is an equal number of things it cannot. For instance, most states will not allow a prenup to include any provisions regarding child custody or child support. The courts determine these matters in accordance with the “best interest standards.” As for child support, even if you and your spouse agree to not force one another to pay, the courts will never deny a child full financial support from both parents.
Just as a prenup cannot waive a parent’s right to child support, it also cannot waive a party’s right to alimony. Some states strictly prohibit such provisions, while others give them very little weight.
Additionally, courts do not care for personal provisions in prenuptial agreements. You cannot ask the courts to enforce a provision that demands your spouse do all the dishes or that your shared children call your mom “Gigi.” The courts will only uphold financial-based terms, not personal ones. Finally, if any part of the contract seems to encourage divorce, or if it suggests anything illegal, the judge will set the document aside.
The rules for what a prenup can and cannot include are tricky and, at times, seemingly contradictory. For help crafting an enforceable prenuptial agreement, work with a family law attorney.