Wedding planning can be daunting. Whether you’re having a post-pandemic blow out or figuring out how to tell your family that you’re eloping… and they’re not invited, it can definitely be stressful. However, your prenup doesn’t have to be! While prenups do come with different requirements in each state that must be met, we’re here to walk you through exactly what you can and cannot include in your agreement. Consider your prenup related to-do item checked off that wedding list!
What you CAN include in your prenup
First things first, you might be thinking, what is a prenup? Well, a prenup is a legal contract entered into by two parties who plan to marry. You and your fiancé MUST complete and sign your prenup prior to the wedding in order for it to be valid. Your prenup can cover topics including marital property division, separate property designations, and alimony, just to name a few.
Classification of marital and separate property
Depending on the state you are in, the property you own prior to marriage may or may not be considered your separate, or non-marital/non-community property. Once you tie the knot (without a prenup), any property or assets obtained during the marriage (including your salary!) may be considered marital or community property – inheritance may be an exception, but not always. So, when you divorce, that marital or community property is split between the spouses. How this split operates depends largely on the state where you live. In some states, such as California, community property is split right down the middle – even if you personally contributed zero to the particular asset or liability. If that sounds unfair, you and your spouse can enter into a prenup in which you determine what property is classified as marital and separate rather than accepting the state’s default designations. For example, you could classify your small business or income as separate property. That way, if you were to divorce, your spouse would not be entitled to those separate assets.
Many people view prenups as protecting their property and savings. However, prenups can also protect you from your partner’s debt. Just as assets obtained during marriage may be considered marital property – debt could be, too. If you want to ensure that you aren’t on the hook for your partner’s debt, be sure to address this in your prenup!
Death and divorce – probably the least fun topics to discuss, but very important! And, your prenup can address both! Specifically, your prenup can decide what property your spouse may be entitled to in the event of death. A prenup, in addition to wills and trusts, can be a very important component of your overall estate plan.
Children from a prior marriage
If there is certain property that you want to ensure passes on to your children from a prior marriage – such as family heirlooms – you can designate that property as separate property to prevent it from being split with your spouse upon divorce.
What you CAN’T include in your prenup
There are also quite a few topics that cannot be addressed in your prenup. This is important because the inclusion of improper terms could result in your prenup being invalidated by a court. Nobody wants that!
If you know that you and your fiancé want to have children – or perhaps you already have children together – your prenup is definitely not the place to make custody decisions. While you and your fiancé may be totally on the same page and think that making a plan before conflict arises is the way to go, unfortunately, the courts don’t see it that way. When it comes to making custody decisions, the courts have the ultimate authority to do what is “in the best interest of the child”. That means that the court has the power to invalidate any custody agreements made between you and your fiancé.
So why is the court so opposed? Well, let’s look at an example. Sally and Frank agree in their prenup that should they divorce, Sally will have full custody of the children because as the stay-at-home parent, she is in the best position to care for the children. Frank, on the other hand, has a very demanding job and is often traveling for weeks at a time. They don’t decide on any visitation schedules because they assume they will be on good terms and Frank will be able to see the children whenever he wants. However, down the road, Sally gets the opportunity of a lifetime and decides to reenter the workforce. Frank then decides to give up his career to care for the children. When the couple divorces, Sally asserts that she has full custody and Frank is out of luck. Sally won’t even let Frank visit the children. Courts often employ a theory called “best interest of the child” when determining custody in a divorce action. A prenup cannot pre-determine what is in the best interest of children that are not yet born, years in advance. It just is not possible!
If this type of agreement came before the court, it would certainly be invalidated. The result is extremely unfair to both Frank and the children. Custody agreements made years in advance don’t reflect the changes in circumstances that can occur over the years, and cannot predict what is in the best interest of the children. So, moral of the story, don’t include custody provisions in your prenup.
Similar to child custody provisions, child support provisions should also not be included in your prenup. Generally, you cannot contract away your right to support your children. For example, you cannot state in the prenup that one parent does not have to pay child support, or even put a limit on the child support they are responsible for. This is the case even if one parent is a multi-billionaire and the other is a stay-at-home parent. Even if both parties are in agreement, the court can override any child support agreements made by the parties in favor of the state’s child support guidelines.
Unfair or overly personal terms
Courts will not enforce provisions that are unfair or overly personal. For example, couples may attempt to contract day to day decisions into their agreement such as who takes out the trash, where the kids can go to school, how often your partner’s mother can visit, etc., etc. Even worse, some couples may include unfair provisions such as weight or appearance requirements into their agreements. Yuck!
Prenups are mainly designed to deal with financial terms rather than creating marital rules that the couple is legally bound by. While depending on the state, some non-financial clauses may be properly included in a prenup, marital minutiae and overly personal provisions are not likely to be valid.
Likewise, you cannot include terms that are unfair. If, for example, enforcing one spouse’s alimony waiver in the prenup would mean that the spouse would then become dependent upon the state for support, the court will not enforce the prenuptial provision – and may even throw out the entire prenup! One final note – and this may go without saying, but your prenup also cannot require or encourage one or both spouses to commit any illegal acts.
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