What Does the Law Allow with Prenuptial Agreements

What Does the Law Allow with Prenuptial Agreements?

 Understand what you can achieve by making a prenuptial contract prior to you getting married. A prenup is a contract that two people sign prior to them get married. Any couple considering getting married can enter a prenup if each of the parties agree to each of its conditions. The primary goal of a lot of prenups is to create rules and guidelines for dividing assets and debts should the couple get divorced. Every state has their owns laws on what you are able to and unable to include in your prenuptial agreement, so prior to you signing it, be sure to check with an experienced attorney in your state to confirm that your contract is genuine.

What Can You Achieve With a Prenup?

It’s common knowledge that the divorce process can be emotional and expensive. For couples that wish to decrease the cost and turmoil that typically come with the legal process, you can include some or all the below particular provisions in your prenup. The primary aspect of a just and genuine prenup is full disclosure—each party should carry out a financial disclosure statement, recognizing all their assets and debts.

Identify and divide individual and marital assets

When couples get divorced, one of the initial tasks is to identify and distribute individual and marital property. Individual property will include the assets a spouse owned prior to the marriage or which were obtained through a gift or inheritance. Marital property will include assets the spouses obtained throughout the marriage. Usually, if you can prove that you owned the property prior to you getting married, it will remain your individual property, and the court will not grant any of it to your spouse. There are 2 ways the court can split marital property. In community property states, courts typically divide marital assets fifty/ fifty. In equitable distribution states, judges split marital property in a way they deem is just, subject to the individual situation of each case—this technique doesn’t always result in a 50/50 division. Courts consider a variety of aspects to establish what would make up an equitable division. Prenups are an ideal way to help couples avoid a drawn out battle over tangible property should the marriage end in divorce. When properly devised, the prenup can identify each spouse’s individual property and confirm how it is going to be treated upon divorce. You are also able to decide how you are going to divide your marital estate in beforehand. For instance, when you want each spouse to get fifty percent of the marital assets, put that in writing, instead of leaving it up to a judge should you divorce.

Identify and distribute separate and marital debts

Undoubtedly, money issues can be the cause of many failed marriages. When you and your fiancé want to avoid ending up in the same pitfalls that a lot of couples do, you are able to add a stipulation to your prenup that addresses debt. The fundamental aspect of a fair and genuine prenup is full disclosure—each party is required to carry out a financial disclosure statement, distinguishing all their assets and debts. They need to also attach a copy of this to their prenup agreement. Likewise to assets, your agreement should identify individual and marital debts and how you are going to divide each one of them. Prenups are especially useful when one spouse brings a considerable amount of debt to the marriage. If you would like to guarantee that you are not going to be responsible for your partner’s terrible credit habits from college, you can add a clause concerning this in your prenup.

Spousal support concerns

It’s common for one spouse to earn more than the other or for one spouse to stay be at home and raise children instead of going for a typical career path. Subject to the length of your marriage and the divorce laws in your state, the lower-earning spouse might be entitled to spousal maintenance from the other. Spousal maintenance can include momentary or long-term payments, and the amount is subject to what the judge is going to decide on, which may not be ideal for you and your family. When you would like to bypass the uncertainty of a judge’s prudence, you can add a clause covering spousal maintenance in your prenup that is going to financially safeguard should you get divorced later. If you earn considerably more than your spouse prior to getting married, you can add a clause that restricts spousal support later. Bear in mind that all prenuptial stipulations are subject to a judge’s assessment, so if your agreement isn’t just or seems vindictive, the court could eliminate the clause.

Special considerations should you have children from a prior marriage

If you’re getting remarried and either spouse has children from a past marriage, your prenup should include a clause that is going to guarantee that your children are able to inherit their portion of your estate in the event of your passing, if that’s your intentions. In the agreement, one or both spouses can denounce their right to declare a share of the other’s property at their passing, maybe in exchange for a prearranged amount of assets. It’s vital for you to follow up with your estate planning wishes by devising a will or living trust following the discussion of your plan with a knowledgeable estate planning attorney.

Keep property in the family

When you have individual property that has an item that you are going to want to keep in your immediate family, such as an inheritance or family heirloom, you both can agree that it will stay in your family following a divorce. Should you anticipate an inheritance or other property later, you can also add a clause that specifically conveys future gifts or inheritances. Even though this might be unnecessary, subject to the laws in your state and individual property laws, making these wishes specific and putting them in writing can be wise should you have any concerns about this.

What You Can’t Include in Your Prenup

Whether you create a prenup or not is up to you and your spouse. Nevertheless, even couples with a prenup are going to need to go through the formal divorce process and adhere state laws. There are multiple legal matters that the court (or spouses) are going to need to decide prior to the judge terminating your marriage. Although prenups may include clauses for property and division of debt, spousal maintenance, and possibly inheritance rights, there are many important topics that you are unable to control in a prenup, and you are going to need to address throughout the formal divorce process.

Child custody/ support and parenting time

Divorcing parents can work with one another to decide how to manage child custody and/ or support and parenting time. Nevertheless, the court is going to need to approve your agreement prior to enforcing it, and you are unable to resolve these matters in advance in a prenup. The court is always going to have the power to decide how to apportion child custody and set child support by assessing what’s best for the children at the time the issue comes up. Each state has a particular set of aspects that courts are going to examine concerning custody decisions and to set the amount of child support the non-custodial parent is going to pay every month. When you’re unsure that you are going to be in agreement with the judge’s decision, you might want to think about attending mediation with your spouse prior to petitioning for the court’s assistance.

Day to day tasks or spousal duties throughout the marriage

Couples thinking about marriage may want to add clauses in their prenup that establishes which spouse is going take out the trash, keep the house clean, or handle other non-financial duties. Nevertheless, the law restricts any provision that requires a spouse to finish a function or task in prenups, and it may motivate the judge to take the entire agreement less earnestly. When you’d like to initiate particular responsibilities for each spouse, you can add your wishes in a different document. It’s essential to comprehend that the court is not going to enforce this kind of arrangement, so when either spouse chooses to ignore the clauses, the other doesn’t have much support with the court.


  1. Melissa Heinig, A. (2020, January 24). Prenuptial agreements: What does the law allow? www.nolo.com. Retrieved July 12, 2022, from https://www.nolo.com/legal-encyclopedia/prenuptial-agreements-what-law-allows-30283.html

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When a case demands litigation, you’ll have the benefit of 19 years of litigation experience in California and Arizona. But when a case demands collaborative law, or mediation, we can meaningfully describe why collaborative law or mediation may or may not be your best option.

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