What Can & Can’t Be In A Prenuptial Agreement

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The range of what can be in a prenuptial agreement is flexible and can accommodate most of the individual wants and desires that a marrying couple may have. On the other hand, there are some strict rules about what cannot be in a prenuptial agreement.

Generally, a prenuptial agreement can deal with the following:

(a) division of property on divorce;

(b) whether particular items are considered community property or separate property;

(c) ownership of the marital residence;

(d) responsibility for premarital debts;

(e) distribution of property on death (although you also need to update your estate planning documents to reflect his);

(f) alimony obligations (in most States);

(g) financial responsibilities during the marriage;

(h) under which state’s law the prenup is (otherwise it will be the state of the divorce, and not the marriage);

(i) how disputes about the prenup are to be resolve (for instance through mediation or arbitration); and

(j) sunset clause – many couples allow that their prenuptial agreement will not be valid if they are married for a certain number of years.

There are a number of limitations to prenuptial agreements. Prenuptial agreements can’t deal with the following:

(a) custody of the children (this includes things such as in what religion to raise the children, their schooling, etc.);

(b) visitation to the children;

(c) child support;

(d) anything “illegal” (as with most contracts); and

(e) anything “unconscionable” (unfair)

(f) anything that is thought to encourage divorce;

Although most states permit prenuptial agreements to deal with alimony, a court is allowed to invalidate the alimony provisions if the judge believe them to be unjust. This will normally occur in long term marriages if there is a great disparity between spouses’ incomes and no or little alimony being paid.

Finally, although items that deal with particular aspects of married life, such as the division of household responsibilities, are allowed to be in a prenuptial agreement, including these may actually make increase the likelihood of a prenuptial agreement being invalidated. If this sort of thing is important to you and your spouse, it is best to put them in a separate agreement.

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