Is there anything my prenup can’t cover?

You probably know that prenuptial agreements are intended to protect a couple’s assets in the event that they divorce. In a prenup, the spouses and their attorneys set forth the terms by which the couple’s property will be divided after they split up.

Prenuptial agreements are tailored to fit each couple’s unique needs. In your prenuptial agreement, you can address everything from a family business to your favorite car to your collection of stamps. But as unique as prenups can be, they cannot necessarily include anything that you want. There are some things that your prenuptial agreement simply will not cover.

Anything illegal

Prenuptial agreements cannot include anything that pertains to illegal activity. A court will not uphold any provisions in the document that address, for example, how to divide one’s illegal stash of marijuana, or who gets to keep the stolen guns. A court may even decide to completely throw out any prenuptial agreement that includes provisions for illegal activity.

Alimony waivers

To circumvent the possibility of paying alimony in a divorce, a spouse might try to include an alimony waiver in the prenuptial agreement. But even if the other spouse does agree to waive their right to alimony, a court will usually not uphold such a waiver. Of all prenuptial provisions that are struck down by the court system, alimony waivers are the most common.

Child custody or child support agreements

The ultimate say in child custody arrangements goes to the court system. Even if spouses address potential child support or child custody decisions in their prenup, it will likely not hold up in court. When a court makes a decision regarding child support, custody or visitation, it does indeed take the wishes of the parents into consideration—ultimately, though, it bases its decision on the best interests of the child, not the stipulations of the prenup.

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Keith B. Schulefand, Esq.
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