It’s clear that a prenuptial agreement can be very valuable. It can help you protect your assets. It can allow you to make financial decisions before the potential end of your marriage, so that you and your spouse can resolve important issues while you’re still on good terms and clearly have the other’s interests at heart. Many couples use prenups to define their relationship expectations and determine what should happen if that relationship ends.
Yet, it is important to understand that you cannot put anything you want in a prenuptial agreement. In fact, including certain provisions could get a prenup thrown out of court. For starters, these are four terms you shouldn’t include.
Child custody decisions
You can’t formalize child custody decisions in a prenuptial agreement. Even if both of you agree that one person should get sole custody in the event of a divorce, you cannot formalize that decision in this way. In the event of a divorce, you and your spouse can agree to certain custody and parenting plan terms and work with an attorney to formalize them. Otherwise, in the event of contested circumstances, the court will make a determination based on the child’s best interests.
Of course, you also can’t put anything illegal in the agreement. Again, even if you both agree, these types of provisions would be a violation of the law and will never stand in court. The court may simply throw out the whole document on the grounds that it is all untrustworthy.
Some people also believe that they can put personal preferences and rules into their prenup. They may want to stipulate that one person always has to do household chores or that they always get to make all the decisions about how to raise the children. You and your spouse can have whatever rules you want in your household, but you can’t generally put them into a prenup. There may be exceptions to this rule in some states, but many states take a “finances and property only” approach to the structure of prenuptial agreements.
Additionally, courts will be skeptical if a prenup appears to be incredibly one-sided. This doesn’t mean that you have to divide your assets equally, of course, but the document can’t clearly be written to benefit one person at the significant expense of the other.
These are all important key points to keep in mind when creating a prenuptial agreement. Seeking legal guidance can help to ensure that your document is crafted properly and in ways that will be enforceable.