Understanding Prenups: What They Can and Cannot Include

Introduction

With prenuptial agreements (prenups) growing in popularity, many couples are considering them as a practical measure before marriage. However, there are numerous misconceptions about prenups, with one being that they might predict or even encourage divorce. Prenups, in fact, serve as protective tools, akin to estate planning, aiming to safeguard individual interests. It is crucial for couples to understand what can legally be included and what cannot, establishing clarity and setting mutual expectations.

 

What Can Be Included in a Prenup

Prenuptial agreements can address several aspects to manage expectations and assets between partners. These include:

• Property Distribution: Couples can determine how assets acquired before and during the marriage will be divided if the relationship ends.
• Retirement Benefits: Details about the division of retirement funds can be specified, ensuring transparent distribution aligned with both parties' wishes.
• Debt Responsibility: Assigning responsibility for any debts accumulated during the marriage helps prevent future disputes.
• Financial Management: The agreement can outline management of joint accounts, handling household bills, and even conditions for credit card use.
• Specific Agreements: Terms for managing separate businesses, handling of significant expenses like school tuition, and other customized financial matters can be included.

What Cannot Be Included in a Prenup

While prenups offer many advantages, they are restricted from including certain provisions:

• Child Custody and Support: Decisions regarding children cannot be legally determined via a prenup as these aspects are governed by state law and must be resolved by the court based on the child’s best interests.
• Alimony Waivers: In many states, agreements to waive alimony entirely can be challenged in court, especially if they lead to significant hardship.
• Divorce Incentives: Any clauses that promote divorce, such as financial incentives contingent on divorce, are typically unenforceable.
• Illegal Activities: Agreements that involve or encourage illegal activities are void.
• Personal Matters: Details like daily chores or special occasion plans are generally not enforceable in a prenup.

Dispelling a Common Myth

There's a widespread myth that prenuptial agreements fortify the path to divorce. In truth, they serve a constructive purpose, just like living wills or estate plans. By clearly outlining financial arrangements and responsibilities, prenups can reduce conflicts and foster understanding before marriage.

Understanding prenuptial agreements helps couples protect individual interests and pursue a mutually beneficial relationship. To draft an agreement that aligns with your unique needs, consider consulting a legal expert. They can offer tailored advice to craft a comprehensive and valid prenup, promoting a harmonious marital start.