A prenuptial agreement can be a useful legal tool for making financial decisions before a couple legally enters into a union. It is not an indicator that divorce is more likely. It just allows people to make certain decisions in advance. Setting expectations and boundaries in advance can actually help a marriage to start off stronger and more clear-eyed.
With that being said, there are a number of restrictions or limitations regarding what a person can include in a prenuptial agreement (also known as a prenup or premarital agreement). Some common restrictions can even lead prenups to being thrown out by a court if one spouse or the other ever attempts to enforce its terms.
Child custody and support
Prenups generally cannot dictate terms related to child custody, parenting time or child support. Courts prioritize the best interests of the child, and these matters are typically determined separately based on the child’s needs and well-being at the time of divorce or separation. Doing so in advance means that the parents are making decisions for the child before their best interests at the time of separation have been defined, which may be unfair to them.
Illegal terms
Prenups cannot include terms that are illegal, that are against public policy or that violate any applicable laws. For example, you cannot include clauses that encourage illegal activities or violate human rights. The court would never hold someone to an illegal provision, even each spouse willingly signed the prenup.
Unconscionable terms
Courts may invalidate a prenup if the terms are considered grossly unfair or if one party was coerced, pressured or did not fully understand the agreement’s implications when signing it. The basic idea is for a prenup to offer a fair, legal structure that both people have agreed to of their own free will.
Personal rights and obligations
Prenups typically cannot dictate personal behaviors, such as weight gain, appearance changes or other personal lifestyle choices. A prenup is not supposed to force a spouse to live a certain way, at the risk of losing their assets in a divorce if they fail to live up to these artificial standards.
Considering various options
For those considering prenups, it is clear that they have be drafted correctly, in accordance with the law, or they are not going to hold up in court. It’s very important for all involved to know how this legal process works and what rights they have before signing.
