Written by Avvo Staff

3 limitations of a prenuptial agreement

There are some terms that a prenup cannot enforce

You can use a prenuptial agreement to outline many of the terms of a potential future divorce or separation. This can be especially useful if you have a lot to lose, like large investments or assets intended for children from a previous marriage. But certain terms aren’t legally enforceable in a prenup. If you do include them, the court will just throw them out.

Non-financial conditions

A prenuptial agreement can generally only specify how debts and assets will be handled. You can’t include non-financial matters like these:

  • A minimum frequency for sex
  • Whose family you’ll spend holidays with
  • Division of chores

These are personal matters, and the court won’t help you enforce them. You can’t attach financial considerations to them, either. For example, one spouse isn’t entitled to monetary compensation for spending some holidays with the other spouse’s family.

You also can’t promote a divorce or separation. So stating that you’re entitled to a divorce if your spouse doesn’t do a fair share of the chores isn’t allowed.

While it’s certainly a good idea to discuss non-financial matters before marriage, they don’t belong in a prenup. If you do include them, the court will simply throw them out as invalid.

Child welfare issues

Although many child-related issues in a divorce or separation are financial, they still can’t be part of a prenup.

That’s because they’re tied to the best interests of the child. It’s not possible to decide today what will be in the best interests of a child years from now.

The main child-related issues are:

  • Child support. This is generally based on the child’s specific needs and each parent’s ability to pay. You can’t know now what kind of medical, schooling or other needs your child may have in the future. Also, you can’t waive future child support.

  • Child custody. Choosing the best custody arrangement will depend on each parent’s specific situation at the time. You can’t decide today what arrangement will provide the most stability for the child or put limits on those arrangements.

  • Child visitation. Again, the specific arrangements will depend on what’s best for the child. Courts consider factors like the child’s relationship with each parent, each parent’s ability to care for the child during unsupervised visits, and more.

Although courts do prefer parents create a parenting plan on their own, the court will make the decisions if the parents can’t agree. Either way, the child’s best interests, not terms in a prenup, are always the main consideration.

One thing you can do in a prenuptial agreement is provide for children from a previous marriage. You can include language to protect assets you’ve set aside for those children and prevent your spouse from claiming them.

Terms unfair to either person

Courts won’t uphold terms that are unfair. This may include terms giving one person much less than the other, especially if it would leave that person struggling financially. It may also be terms that are deceitful.

Other things that may invalidate a prenup

Although it should go without saying, you can’t require your spouse to do anything illegal. In most cases, courts will throw out only the invalid terms and uphold the other conditions. But they can also throw out the whole thing. This is more likely if you failed to disclose any assets while writing it or it seems likely one of you signed it under duress.

Also, only written and signed prenuptial agreements are valid. Oral agreements aren’t enforceable. You may also need to have your prenup notarized.

For the most part, state laws govern prenuptial agreements. The specific details of what’s allowed will depend on your state. If you’re not sure what you can include, consider hiring a prenup lawyer. That way you can have peace of mind knowing your prenup should stand up in court if necessary.

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