Prenuptial agreements (or prenups) are used to separate your personal debts and assets from those of your future spouse. They can include things such as alimony/spousal support; division of properties, investments, and businesses; estate planning; and other monetary and possession-based negotiations.
Prenups serve as a guide to reduce confusion, stress, and emotion in the event of a divorce or separation. They can even include terms in relation to how any disputes are to be resolved (such as through mediation or arbitration), and can be amended or even revoked.
Prenuptial agreements are useful to many people, but are recommended to individuals and couples that are in the following circumstances:
- Individuals entering into their second marriage
- Individuals who have children from previous relationships
- Individuals who have large debts, businesses, or personal investments
- Couples who have significant differences in age or income
Although prenuptial agreements do cover a variety of financial and ownership-based terms, there are still a number of topics that cannot legally be included within them.
There are also a variety of factors that can cause a prenuptial agreement to be deemed invalid. In this post, we’ll talk about the types of things that you cannot negotiate in your prenup, and what can cause a prenup to be considered forfeit.
What is Not Covered in a Prenup:
If you are thinking of getting a prenup, it will require a lot of time and deliberation between you and your partner. Not only do you need to figure out who is entitled to what in the event of a separation, you also have to think about the future. Are you going to have children? What will you do if one of you becomes unemployed? When should you make amendments to your premarital agreement?
To make it a little easier for you to navigate, we’ll tell you what you can’t include in your prenup:
1) Visitation, Support, and Custody of Children
- Courts today generally follow the belief that separations involving children should be negotiated based on the individual family members. Since so many things factor into custody, visitation, and child support decisions, it is nearly impossible to attempt to predict what you might want to happen in the event of a divorce.
However, you may include provisions to protect any previous children that you may have had. This means that should you have a property, investment, or other type of asset that you would want given to your child/children in the event of your death or divorce, you may include those specifications in the agreement.
You may also agree to things such as the percentage each party will contribute to a child’s education or their future support.
2) Illegal Terms
- As with most legal contracts, anything illegal, such as terms, possessions, requirements, etc. may not be included in your prenuptial agreement. You may not require that your spouse commit an illegal act, nor may they require that of you.
3) Unfair Terms
- Unfair terms are requirements that are unjust, extremely one-sided, or deceitful. Terms are generally deemed unfair in the event of exploitation.
An example would be if you were marrying someone who is entitled to a large inheritance with little or no other income. If you create terms that dictate that your spouse will give up their inheritance to you upon a divorce, leaving them with nothing to support themselves with, it is likely that those circumstances in the agreement would be considered unfair.
4) Non-financial Requirements
- Prenuptial agreements that include stipulations for weight-gain, hair color, clothing, or other physical or personal appearance are generally not taken seriously.
An example of this would be the rumored clause that Tony Romo was thinking of including in his prenup with Jessica Simpson. It was said that she was to weigh no more than 135 pounds during their relationship, and that he would be entitled to a bonus for every pound that she gained over that.
- Prenuptial agreements that include stipulations about frequency of sexual relations, in-law visits, and other relationship based terms are not considered valid.
It is suggested that any physical or relationship based preferences be discussed prior to the marriage. These types of predilections should be negotiated and considered privately between the parties involved.
5) Verbal Agreements
- Prenuptial agreements are not considered to be valid if they have only been agreed upon verbally. A signed, notarized, and legal document is required in order to enforce a prenuptial agreement in a court of law.
When a Prenup is Invalid:
When navigating a prenup, you and your future spouse need to be aware of not only what will not be considered acceptable, but what inclusions can cause your premarital agreement to dissolve. Here are some things to look out for to ensure that your prenuptial agreement holds up in the unfortunate event of a divorce or separation.
Failure to Disclose All Assets and Fraud
- If you or your partner do not disclose all of your existing assets when you create your prenup, you risk voiding your contract.
- Along the same lines, if any of your assets (or assets that you have claimed) are deemed fraudulent, your prenuptial agreement is less likely to be considered during your separation.
Unfairness and/or Duress
- Unfairness, as mentioned above, means that one party was treated with inequity at the time the contract was made. In general, it is when one party has taken advantage of the other.
- Duress is considered a form of coercion and means that one party’s consent to the document was induced or forced. If there is evidence of duress or coercion in relation to the marital agreement, it will likely be annulled.
Promote Divorce or Separation
- A prenuptial agreement may not promote separation or divorce in its terms. This means that language such as, “if you _____, I can get a divorce”, is not allowed.
- For a prenuptial agreement to be considered valid and legal, it must be signed by both parties and notarized. If you are unsure as to how to sign your document in order to ensure its validity, take a look at this guide to signing legal contracts.
A prenup that has not been signed by both parties and notarized will not be recognized.
A prenup that contains any of the points above that are not recommended or allowed may be considered invalid in part or in its entirety.
For those uninterested in becoming married but who still want to separate their finances and assets from those of their partner, you may want to consider a cohabitation agreement.
When done correctly, prenuptial agreements can be a helpful and simple way to avoid potential future conflict. They also offer an excellent way to start an ongoing and open conversation with your future spouse about your separate and shared finances. The more you discuss your finances and the life that you would like to have together, the easier it is to understand if you are on the same page or not.
Protecting your assets and dividing your debts can even help you to avoid arguments about personal debts and finances during your marriage, helping you to be a happier and healthier couple.
What are your thoughts on prenups? Would you recommend one to a friend? If so, please share this post!