Put THIS in Your Prenup, Not THAT

Feb 8, 2021 | Finances, Prenuptial Agreements, Second Marriages

Prenuptial agreements are an excellent, preemptive tool that can save you attorney fees, as well as emotional stress, at the end of a marriage. Prenups get a bad rap sometimes. Generally, we only hear about them after a marriage has come to an end. For example, Kim and Kanye are splitting up (for real this time) and the first thing everyone wants to know is: “What’s in the prenup?”

Rest assured that the Kimye empire will take some time to divide. Even with a highly effective prenup, it simply takes a while to separate so much wealth. It’s a good thing they do have a prenup, though, because figuring out (and agreeing to) who owns what when you’re dealing with extreme wealth can literally take years.

The reality stars’ prenup is reported to contain provisions that allow Kim $1 million for every year of the marriage. She is also apparently entitled to keep gifts given to her by Kanye. It remains to be seen exactly how their assets are to be divided, and we mere mortals will probably never know the full details. We do know, though, what won’t be in their prenup because there are some things that simply aren’t enforceable.

Prenups and Child Custody Provisions Are Problematic

There are a lot of issues to consider when you prepare your prenup. You need to provide an accurate accounting of your current assets and plan for the future at the same time. Maybe your future plans are so detailed that you are certain of which parent should get custody of the children should you divorce.

Even if you are absolutely convinced you know best, a provision in your prenup that precludes a parent from custody of their child will be tossed out by a judge in court. The courts also want what is best for a child and so they will not abide by an agreement that parents made who-knows-how-long-ago. It is worth noting that the court could very well agree with the parents’ opinion, but the court is ultimately not bound by the prenup when it comes to child custody provisions. Ever. In fact, if you include child custody provisions, it could invalidate your entire prenup. So, don’t.

What is up with the court’s fierce opposition to including child related provisions in a prenup? There are many times when the person who would be the most appropriate custodial parent at the start of the marriage will also be the best option at the end of the marriage. Circumstances change, though. One spouse may develop a substance abuse issue or a mental illness. Or perhaps it is something as simple as one parent taking a job that requires them to travel most of the time.

While your prenup can’t pre-designate who the custodial parent will be after a divorce, it can include provisions that dictate which assets will be allocated to either spouse which can in turn support the child, in a round-about-way. Because a lot can change over the course of a marriage, including your wealth, it is important to make adjustments to your prenup along the way.

You Can’t Prenup Your Way Out of Child Support Payments

Many couples plan to have children after they get married and it may seem like a smart move to include a provision in your prenup that says one parent doesn’t have to pay child support if you divorce, or a certain amount of child support should be paid, etc.

Although it makes sense to think about your future children when drawing up a prenup, you need to know that courts will not enforce a term that says one parent doesn’t have to pay child support, and will not enforce a term that says one party must pay a certain amount of child support. At first, this may seem unfair. If your spouse makes a lot more money than you do, and they are in agreement that they should pay child support, then who are the courts to interfere?

The reason that a married couple can’t stipulate as to who should and shouldn’t be responsible for paying child support has less to do with the parents than it does with the child. At the end of the day, the courts say that a child has a right to financial support from either parent, and parents can’t contract that duty away.

Although you can’t include a provision in your prenup that says you don’t have to pay child support, and you cannot stipulate to an amount of child support, you can decide to maintain assets in a way that benefit the child after divorce. This approach can be a fair way to ensure parents are equally contributing to household or lifestyle needs.

Prenup Provisions That Are Too Personal

To say that a prenup can’t be too personal probably sounds ironic. After all, how can running a fine-tooth comb through you and your partner’s financial histories not be personal? While it is one thing to dig into personal financial histories for a prenup, it is another thing altogether to include a prenup provision that says one person has to do the dishes.

Some other examples of matters considered “too personal” to be included in a prenuptial agreement are:

  • Where vacations are spent
  • Who gets to make the dinner decisions
  • Where the kids go to school
  • How often your mother-in-law can visit

Prenups are designed to be tools that deal with financial assets and how those assets will be divided when a marriage ends. They are not meant to set the relationship rules for a marriage and (spoiler alert) assigning one person dish duty until death do you part may not be great for your marriage. It is more often that lifestyle clauses are included in prenups, and familiar ones often include infidelity clauses, social image clauses, or confidentiality clauses- which are all enforceable in most states, to a certain degree.

Another type of provision that won’t hold up in court is the type that threatens divorce. An ultimatum that says something to the effect of “I can divorce you if you don’t finish grad school” will be tossed out. In reality, there is no need for overly personal terms in prenups. After all, a happy marriage is about communicating personal needs and expectations, not contracting them.

Courts Don’t Permit Unfair Prenup Terms

Occasionally, when people prepare prenuptial agreements without the proper legal guidance, they can end up leveraging their own wealth to the detriment of their spouse. Although this may be an innocent attempt at protecting their assets, there most certainly is a wrong way to go about it.

Prenuptial agreements should not include provisions that allocate one spouse’s entire financial future to another spouse. Additionally, if one person in the relationship is much wealthier than the other, they should be extremely careful in stipulating alimony waivers. Courts do not like it and in a number of states, such terms may be thrown out by the court.

If you aren’t sure if you’re in this situation, you should contact an experienced attorney so they can put you on the right track. Sometimes, prenups can serve to raise marital red flags before you sign the marriage certificate.

Keep It Legal

If a court doesn’t like a provision in your prenup, oftentimes they will simply strike it and allow the remainder of the prenup to stand. Many prenups, including HelloPrenup prenups include a severability clause, that states if one provision in the prenup is discarded, the others should not be. If, however, your prenup advocates for criminal activity, it can be thrown out altogether. You may be no Bonnie and Clyde, but sometimes the line between legal activity and illegal activity is thin.

To ensure that the court will fully enforce your prenup, and that you don’t end up in the slammer because your prenup said you should rob a bank (just kidding), ask an experienced attorney to take a look at a draft of your prenup. You can do all of the legwork in preparing your prenup and then save some time and expense by simply having a lawyer check it out to make sure you understand the implications.

So, What Goes in a Prenup?

You may have figured this out by now, but terms related to sharing financial wealth go into your prenuptial agreement. Before you get married, you and your significant other should sit down and inventory your individual assets. This includes, investments, real estate, business assets, trusts, wages, and much more.

You may wish to plan out how this wealth will be redistributed if it grows or shrinks in size, and you could even dedicate income from specified assets to certain things, like a college savings fund for your children. It is worth repeating that at any point along the way, you can bring in professionals to help you navigate the process if you are struggling.

Additionally, if your financial circumstances change in a manner you didn’t anticipate along the way, you can make amendments to your prenup. You should also be sure to practice what you outlined in your prenup. For example, if certain accounts are designated as individual accounts, you need to avoid co-mingling funds.

The issues discussed in this article are some of the more straight forward problems that can arise when you draft your prenup. Hopefully, now you have a better understanding of how to ensure you and your partner’s prenup stays within the rule of law. Each state is different, and there are legal nuances that you need to be aware of, but in large part, if you’re intent is clear and honest, then you are well on your way to a highly functional prenup (and marriage)!

This blog is for informational purposes only. HelloPrenup, LLC (“HelloPrenup”) makes no representations as to the accuracy or completeness of any information on this site. HelloPrenup will not be liable for any errors or omissions in this information nor for the availability of this information. These terms and conditions of use are subject to change at any time and without notice. HelloPrenup provides a platform for legal self-help. The information provided by HelloPrenup along with the content on our website related to legal matters (“Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither HelloPrenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.

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