Prenuptial Agreement: What Can and Cannot Be Included

What Can and Cannot Be Included in a Prenup

Nearly 50% of all marriages in the United States end in divorce, which is among the highest divorce rates in the world. Despite this, only 11% of engaged couples think that their marriage to be has a chance to end in divorce, which may explain why only 5% of divorces involve a prenup. Divorce attorneys recommend that everyone have an antenuptial agreement in place prior to marriage, even if they do not currently have many or any assets.

What Can Be Included in a Prenup

Each state has its own laws constituting what is marital property and thus distributable upon divorce and what is separate property and thus protected. The main purpose of a prenuptial agreement is to supersede the state laws so that you determine how property is distributed rather than the court. In most states, a prenup can also include provisions that:

• Limit debt liability
• Protect estate plans
• Dictate spousal responsibilities
• Maintain family property with the family
• Provide for children from previous relationships

What Cannot Be Included in a Prenup

What cannot be included in a prenup varies from state to state and may come down to the discretion of a particular judge. A divorce attorney can be invaluable in preparing your prenuptial document in a manner likely to have it approved rather than set aside. One of the core rules that is present in every state is that you are not allowed to include anything that would be deemed illegal in that state. In most states, you are also not allowed to include provisions that:

• Encourage divorce
• Waive the right to alimony
• Dictate child custody or child support
• Determine personal matters during the marriage

Child Custody and Child Support

Child custody and child support are included in both the can and cannot list. The distinction here concerns who are the biological parents or legal guardians. If you are marrying a person who has a child from a previous marriage, your prenup could, for instance, contain provisions that protect you from having to pay support for that child in the event that the marriage ends. A prenup cannot, however, dictate custody or support for a child born to the married couple whether born prior to or after the marriage. The reason for this is that the court reserves the right to make these decisions based on what is in the best interest of the child at the time of the divorce. Therefore, the court would never uphold a prenup that dictates:

• Custody
• Visitation rights
• Financial support

Spousal Responsibilities

A prenup can dictate the responsibilities that each spouse has. A common example is saving for retirement. Prenups will often indicate how much each person has to contribute to savings — often dictated as a percentage of income — and even how that amount should be distributed, such as:

• Savings accounts
• Retirement accounts
• Real estate investments
• Stock market investments

Other examples of spousal responsibilities that a prenup can dictate include:

• Education for one or both spouses
• Business ownership and/or participation
• How potential disagreements will be settled
• Claims and deductions when filing tax returns
• Management of credit card spending and repayment

Personal Matters

As a general rule, the spousal responsibilities that are allowed to be included in a prenup are limited to financial matters and cannot extend to what the court would consider personal matters. A prenup could, for instance, dictate that your spouse would have to invest so much in a primary residence by a certain date, but you could not stipulate that your spouse washes the clothes while you mow the lawn. This does vary from judge to judge, but most will deem such matters frivolous and want to avoid them because it would be difficult for the court to intervene outside of facilitating a divorce. Other examples of personal matters that would typically not be allowed include:

• Each spouse’s friends
• Date night requirements
• Frequency of sexual relations
• Requirements for in-law visits
• Religious affiliation and/or obligations

Encouraging Divorce

Society has an interest for marriage and against divorce. Judges, therefore, tend to scrutinize such agreements by looking for any provisions that provide financial incentives or other incentives to get divorced. It is worth noting that this an area of premarital agreements that is highly subjective, and decisions often reflect the culture of the times. Some people argue that prenup agreements in and of themselves encourage divorce. Consider that there was a time when many judges would strike down prenups that dictated how personal property was to be distributed. Many judges deemed such provisions as providing too easy a path out of the marriage. Nowadays, however, such provisions are not only common but expected, and it would be highly unusual for a judge to strike down an agreement for that reason.

Protection Against Debt

Another facet common to modern prenups and a safeguard that many divorce attorneys advise is protection against debt. If you enter a marriage without a prenup and your spouse goes into deep debt without you knowing about it, you can still be responsible to the extent that the lenders can go after the marital property. If your prenup dictates that only one spouse is the debtor for particular debts, then the marital property would be legally protected and not available to those seeking to collect on the debt.

Estate Planning

While people often enter a marriage with the goal of developing their joint estate, some people will enter a marriage with a family estate already in place. It is important to note that you cannot include provisions that limit a spouse’s control over a joint estate. Most states have laws that protect a spouse from disinheritance. You could not, for instance, write your spouse out of your will. Any provision that limited your spouse’s access to your joint estate would likely be grounds for the prenup to be struck down, and even if it was upheld, it likely would not stand up in court when challenged down the road.

However, if you enter a marriage with an estate or are included in an estate, then you could include provisions that limited or even excluded your spouse’s interest in that particular estate. This is often done to protect:

• Businesses
• Real estate
• Family heirlooms
• Financial accounts
• Other people’s inheritances

Protect Your Interests

While no one wants to think about divorce when they are getting married, it is best to protect one’s self in the event that the marriage does end, which you may not control. At the Law Offices of Kelly Berton Rocco, we advise a consultation with a divorce attorney so that you can at least consider how a premarital agreement may protect you as an individual. Call our New Jersey law firm at 201-343-0078 to schedule a free, 30-minute phone consultation, or contact us online.