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What Can and Can’t be Included in a Prenuptial Agreement?

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Whereas no one wants to think about divorce prior to even getting married, prenuptial agreements are designed to set certain conditions in place in case the marriage fails. For example, an individual with an established family business might seek to safeguard those assets from the other party should the marriage end in divorce. Nevertheless, there are specific restrictions to what can be included in your prenuptial agreement.

What CAN Be Included in my Prenup

Below is what some states allow in prenuptial agreements:

Distinctions Between Separate and Marital Property

Every state has their own separate laws that regulate what kinds of property is determined as separate property and what kinds is determined as marital property (many states use “community property” laws, which usually impose fifty/fifty asset division). Following separation by getting divorced or death, the court is going to divide all of the marital property in accordance with state law. For avoiding a court deciding what is going to happen to your property acquired throughout your marriage, you can implement a prenuptial agreement.

Safeguards Against the Other Spouse’s Liabilities

Devoid of a prenup, creditors can still go after marital property of the spouses even though only one spouse is the liable for their debts. To bypass this, restrict your debt liability through a prenuptial agreement.

Terms Providing for Children from Former Relationships

When you have children from a former relationship and you want to guarantee that they inherit some or all your property, you can utilize a prenuptial agreement.

Safeguards to Keep Family Properties in the Family

When you have family heirloom(s), family business, even a possible inheritance, or other piece of property that you wish to retain in your birth family, you can clarify this in your prenuptial agreement.

Safeguards for Estate Plans

These agreements are only parts of guaranteeing that your estate plan is carried out how you deem appropriate. Don’t forget, that you are required to also devise and secure other paperwork like wills and living trusts.

Instructions for Property Distribution Following Divorce

Don’t forget that your state has laws that regulates who receives what in divorces. With a prenuptial agreement you can circumvent many of these laws by agreeing with each other on who is going to receive what. Whereas some states forbid it, other states even enable you to decide on if you are going to be allowed for spousal maintenance or not. Verify with the laws in your state or with a family law attorney to make this issue clear when creating your prenuptial agreement.

Explanations of the Responsibilities of Spouses

There are a multitude of reasons for prenups. The following is a list of items commonly included in these types of agreements:

  • Retirement benefits
  • Individual businesses
  • Income, deductions, and claims for filing your tax returns
  • Arrangement of putting one or the other through school
  • Supervision of household bills and costs
  • Supervision of joint financial institution accounts, if any
  • Contributions to savings
  • Arrangement in regard to investing in specific purchases or projects, such as a home or business
  • Supervision of credit card purchases and payments
  • Property allocation to the surviving spouse, including life insurance, in the event of death
  • Settlement of possible conflicts, like using mediation or arbitration

What CANNOT Be Included in my Prenup

State laws limit what can and cannot be included in your prenuptial agreement. The following is a list of things a lot of states are not going to allow in prenups:

Terms Detailing Anything Illegal

Each state restricts you from including anything illegal in your prenup. As a matter of fact, doing so could put your entire prenuptial agreement or parts of it in danger of being nullified.

Decisions Concerning Child Support and/or Child Custody

Prenups cannot include child support or child custody matters. The court has the final say in assessing child support. The court establishes child support based on a “child’s best interest” standard, with a multitude of aspects at play. A court would never approve of a provision of a prenuptial agreement that covered child custody, child support, or visitation, since these are matters of public policy. The court retains the power to decide what is in the best interest of the child and is not going to deny a child the right to financial assistance or the chance to have a relationship with a competent parent.

Waivers of Spousal Support Rights

This is the most nullified provision by courts. A couple of states strictly forbid this. Other states frown upon it and restrict your ability to relinquish your alimony rights. Many states do permit alimony waivers. Make sure to verify with the laws in your state.

Terms Encouraging Divorce

Judges thoroughly examine prenups in detail to look for anything that tends to offer a financial motive for divorce. If a stipulation can be read to promote divorce, the court is going to nullify it. Courts used to view any stipulation detailing how property is going to be divided as an encouragement for divorce, since society has an interest critical of divorce. The reasoning why judges pay so much attention to.

Details About Personal, Instead of Financial, Issues

A prenuptial agreement cannot include personal preferences, like who has what duties, where the holidays are spent, which spouses name to use, details concerning parenting, or what relationship to have with specific family members. These agreements are intended to address financially based matters. Any forethought discussing non-financial matters is not going to be upheld. Judges get uneasy when they see private domestic issues included in a contract and are going to often view the document as trivial, ignoring it. Should you and your spouse want to have an agreement about such things, do so in a different document, with in which the court is not going to have the power to get involved.

Puzzled About What Can be Included in a Prenup? Get Professional Legal Assistance

Prenups can be helpful for each of the spouses, because they solidify the condition of a relationship and marriage prior to problems coming up. But every prenuptial agreement should get a thorough examination by an attorney prior to them being signed, because the expense of significant errors in the agreement could cost one or both spouses down the road. Locate a local family law attorney near you today for some peacefulness.

Source:

  1. What can and cannot be included in prenuptial agreements. Findlaw. (2018, September 13). Retrieved August 9, 2022, from https://www.findlaw.com/family/marriage/what-can-and-cannot-be-included-in-prenuptial-agreements.html

 
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