May 2021 – What Not to Include in Your Prenup & What Not to Leave Out

Today, because many couples are marrying later in life and bringing their own assets (and debts) into the union, prenuptial agreements are becoming more common. They can protect what is yours and help avoid drawn-out legal hassles should your marriage end in divorce.

That said, there are certain things you cannot include in a prenup.

1. Custody, visitation and/or child support. These matters are determined by the court in conjunction with divorce proceedings.
2. Unfair conditions that give one spouse an advantage over the other. For instance, if one spouse is dependent on a trust or inheritance for financial security, terms requiring those assets be turned over to the other spouse would be deemed unfair.
3. Non-financial conditions restricting personal appearance or relationship issues. In other words, restrictions on how much weight a partner can gain, the color of his/her hair, or how frequently in-laws can visit should be avoided.
4. Conditions promoting divorce or separation. Clauses such as “If you do x, I can get a divorce” are prohibited.
5. Any terms requiring either partner to engage in illegal activity.

So, what should your prenup include?

1. Assets and debts. Prenups can protect your personal assets, including any heirlooms or properties you want to keep in the family, and protect you from responsibility for debt accrued by your partner.
2. Protections for dependent children. Stipulate what rights your dependent children have to properties and financial inheritances in the event of a divorce.
3. Your estate plans. This is especially important when children from previous relationships are involved as it protects their rights to inheritance.

These are just the basics; prenups can be as simple or complex as your individual circumstances determine. Because of this, it is suggested you consult a family law attorney when creating your prenup to ensure it meets the necessary guidelines for legal documents and will hold up in court.