What Can and Cannot Be Included in a Prenuptial Agreement?

Many people think that you only need a prenuptial agreement if you are incredibly wealthy and think that your marriage is likely to end in divorce. This is untrue. A prenuptial agreement is a valuable tool for anyone with businesses, family property, inheritance funds, or income disparities. A prenuptial agreement does not predict or anticipate divorce, it simply clarifies what would happen if a divorce were to occur.

However, a prenuptial agreement cannot cover every possible issue that arises in a divorce. Learn more about prenuptial requirements below, and for more specialized assistance, call Haygood, Cleveland, Pierce, Thompson & Short at 334-821-3892.

Property Division

A prenup can specify how property is to be divided in the case of a divorce. Agreements often specify what is considered marital property and what is considered separate property. This is often preferable to having a court decide how property should be divided in a divorce case.

Debt Division

If one or both parties bring debt into the divorce, it is likely that neither party wants to end up being responsible for an ex-spouse’s obligations. A thorough prenuptial agreement will include information about debt liability. This also protects the other spouse from losing marital assets to creditors if the spouse who accumulated the debt fails to pay.

Family Property

Some property is intended to stay within the family. Without a prenuptial agreement, it is likely that this property will be divided up by the court and considered marital property. For example, family businesses, inheritances, family land, or heirlooms are often intended to stay with the person who is part of the family of origin—not with their ex-spouse. Consider writing this into your prenuptial agreement to protect your lineage and heritage.

Non-Financial Issues

Some couples overestimate what they think a prenuptial agreement can do. They may go into the process wanting to outline who takes care of children, who is responsible for this task or that task, where holidays are spent, and name changes. This is not the purpose a prenuptial agreement. A prenuptial agreement takes care of financial matters that arise with divorce, not personal matters. A prenuptial agreement should not contain this information, as it is not legally enforceable and can weaken the enforceable parts of your agreement.

Child Support and Child Custody

Perhaps one of the biggest misunderstandings surrounding prenuptial agreements is the division of child custody and the payment of child support. To put it succinctly, you cannot decide matters of child custody and child support in a prenuptial agreement. A prenuptial agreement is a contract that two adults sign. Children cannot consent to the terms of the agreement, and a parent cannot waive a child’s right to child support.

Furthermore, child custody is not considered something that can be given or taken away in a prenuptial agreement since it is based on the best interests of the child. Even if you put these items into your prenuptial agreement, you can expect the court to ignore them. Child support will be awarded based on what is best for the child. Child custody will be determined by the child’s best interests and the ability of each parent to raise the child.

Protect Children in a Second Marriage

While child support and child custody issues cannot be included in a prenuptial agreement, you can use a prenup to protect your children’s future wealth should you pass away.

When you remarry, there’s a lot at stake. Both you and your new spouse bring your own separate assets to the marriage and build marital assets during your time together. Some of your separate assets may be those you received during the end of your first marriage, and it’s likely you have specific plans for them. For many people, these plans involve providing long-term for their children. Without a clear plan, it’s possible that those assets will become commingled and considered the joint property of you and your new spouse.

Creating a Strong Prenuptial Agreement

Once you know what you can and cannot put into a prenuptial agreement, you can begin thinking about which conditions you’d like to put in your contract. Note, though, that both parties should have their own attorney representing them during this process. This ensures that both parties’ rights are protected. It also ensures that one party does not enter the agreement under duress. If the court believes a prenup was signed under duress, they will invalidate it. Having attorneys for both parties protects their best interests and ensures a fair, enforceable prenuptial agreement.

Turn to Haygood, Cleveland, Pierce, Thompson & Short for Help with Your Prenuptial Agreement

If you are preparing for marriage and you think a prenuptial agreement may be in order, we are here to help. We understand that you want to protect everything you have built and prevent future disputes or court battles. Schedule an appointment now to discuss your prenuptial agreement. Call us at 334-821-3892 or contact us online to get started.