Permissible Provisions
The scope of a prenuptial agreement is broad, allowing couples to “re-write the rules” that govern their financial lives within the marriage. However, this power is not absolute, and there are specific provisions that courts will not enforce.
A premarital agreement can cover a wide range of financial matters, granting couples the autonomy to define the terms of their partnership. Key provisions that can be included are:
Property Characterization and Division: One of the most common functions of a prenup is to delineate which assets are considered separate property (owned before the marriage or acquired via gift or inheritance) and which will be classified as marital or community property. This can apply to significant assets such as real estate, investments, retirement accounts, and even future income. For instance, a prenup can clarify that if a premarital business appreciates in value during the marriage, the increase will remain the separate property of the business owner, thereby protecting a spouse’s business interest and avoiding potentially costly litigation.
Debt Allocation and Liability: The agreement can act as a crucial safeguard against one partner’s debts affecting the other. It can specify that future debts will be considered separate, joint, or a combination of both, protecting a spouse from being held liable for their partner’s liabilities, particularly in community property states where debts incurred during the marriage are typically considered joint.
Spousal Support and Alimony: Prenuptial agreements can set explicit terms for spousal support. This can include waiving alimony entirely, setting a minimum amount, or outlining specific conditions under which it would apply. By addressing this in advance, couples can avoid contentious negotiations during a divorce.
Inheritance Rights and Estate Planning: The agreement can explicitly address what happens to assets upon a spouse’s death, overriding default intestate laws. This is a particularly valuable provision for individuals with children from a previous marriage who wish to protect their children’s inheritance.
Business Interests and Valuations: For business owners, a prenup is a particularly valuable tool. It can protect business interests by ensuring the company remains separate from marital assets and can establish a clear method for its valuation in the event of a divorce. This helps maintain the continuity and financial stability of the business.
Non-Enforceable Provisions
While a prenup grants broad powers over financial matters, it is not an all-encompassing document. Any provision that violates public policy or statutory law will be deemed invalid by a court. Key non-enforceable provisions include:
Child Support and Custody: This is a universal prohibition. A prenuptial agreement cannot predetermine child support, custody, or visitation rights. These matters are the exclusive domain of the court at the time of divorce, where the decision will be based solely on the best interests of the child, not on the terms of a prior agreement between the parents.
Lifestyle or Personal Behavior Clauses: Provisions related to personal conduct, such as household chores, infidelity, religious beliefs, or physical appearance, are generally not enforceable. Courts view these types of clauses as an infringement on personal liberty and will likely strike them down.
Terms Requiring Illegal Acts or Unconscionable Terms: An agreement is invalid if it requires a spouse to commit an illegal act or if it contains terms that are so grossly unfair that they “shock the conscience” of a reasonable person. The unconscionability doctrine is a critical safeguard against agreements that would leave one party in severe financial hardship.
The distinction between what can and cannot be included in a prenuptial agreement highlights a core philosophical principle of family law: while individuals are afforded broad autonomy over their financial lives, the state retains ultimate authority over matters of public welfare, particularly the well-being of children. This is not an arbitrary limitation. The complete prohibition on predetermining child custody or support is a direct consequence of the legal doctrine of parens patriae, where the state acts as the ultimate parent and protector of children. The court’s authority is paramount and cannot be contracted away by the parents in advance, as the child’s needs at the time of the divorce are the only relevant factor. This demonstrates that prenups are powerful tools for financial self-determination, but their authority is always subservient to the state’s interest in protecting its most vulnerable citizens.
The content of www.premaritalagreements is meant for general information and is not considered legal advice.