A prenup, or a prenuptial agreement, is a legal contract which two individuals enter into prior to their marriage. This agreement outlines the property rights, financial entitlements, and responsibilities of each spouse in the event of a divorce or death. The purpose of a prenup is to provide both parties with a clear understanding of how their assets (and debts, if any) will be divided under those circumstances.
A prenup typically spells out the rights each party has to property, financial accounts, business assets, life insurance benefits, spousal support obligations, inheritance, and debt. However, there are limitations as to what can and cannot be included in prenuptial agreements.
What You Cannot Include in a Prenup
Most states will not allow the following provisions to be included in prenuptial agreements:
- Child Support or Child Custody Prenups: Cannot determine or limit child support or child custody arrangements with regard to children who haven’t been born yet. These issues are determined by the court and are based on a “best interest of the child” standard. The best interest of the child cannot be determined before a child is born.
- Details About Personal Matters: A prenup cannot include personal preferences. Prenuptial agreements focus primarily on financially based issues. Non-financial provisions such as division of household chores, or where to spend the holidays will not be upheld.
- Unenforceable Clauses: A prenuptial agreement must be legally enforceable; therefore, it cannot include anything unlawful. Prenups cannot include provisions that go against public policy. Doing so can put the entire agreement or parts of it at risk of being set aside. An example of going against public policy would be a provision waiving a parent's obligation to provide child support.
- Wavier of Spousal Support Spousal Support: May be addressed in a prenup, however, if the waiver of spousal support would leave one party without the means to be self-supporting and requiring public assistance, the agreement would not hold up in court.
- Unreasonable Terms Prenuptial: Agreements cannot include any terms that are considered unconscionable or grossly unfair. For example, clauses that relate to personal behaviors are generally not enforceable. Prenups that are extremely one-sided may also be unenforceable.
Prenups are useful for any couple wanting to protect their financial interests. It is important to note that a prenup must be voluntarily agreed upon between both parties without undue influence and must contain a full disclosure of all assets and debts.
If you or someone you know is considering divorce, learn more about our team of experienced attorneys at Joseph Law Group, P.C., or contact us for your confidential consultation at 516-542-2000.
Our Latest Client Reviews
We are very proud of the work we do for our clients and incredibly grateful for the positive feedback we regularly receive from our clients.
Below is the most recent review from a client.
