3 valuable rules for those drafting a prenuptial agreement

On Behalf of | Jun 26, 2023 | Uncategorized

Prenuptial agreements are far more common now than they were just a few years ago. With more families comprised of two working adults, it is more common for both spouses to want protection when starting a legal relationship with each other.

Prenuptial agreements allow engaged couples to clarify exactly what they expect from one another throughout the marriage and what would likely happen to the couple ever choose to divorce. For a prenuptial agreement to serve its purpose, it will need to be valid and enforceable in family court, and it will also need to address the biggest issues that are likely to arise at the potential end of a couple’s marriage. The three tips below may help those negotiating prenuptial agreements create an effective and enforceable document.

Both spouses should benefit

One of the more common reasons that the courts choose not to uphold prenuptial agreements is that they are unconscionable. When a contract only offers benefits or protection to one party, the imbalance of the arrangements can make it an unconscionable agreement and therefore potentially unenforceable. It is important that the agreement should offer something of value to each spouse.

Focus on the practical, not the personal

Some people try to include unenforceable requirements in prenuptial agreements, like demands that their spouse never gain weight. Although some couples do have private and personal expectations for their marriages, they will largely need to agree to those terms on their own, as judges typically cannot enforce terms about interpersonal relationships in family court. Terms should focus on practical considerations, like how people spend and share marital income.

Avoid illegal inclusions

There are some terms that seem like a reasonable addition to a prenuptial agreement that would potentially open the door to invalidation. The more illegal or unenforceable terms included in the document, the easier it might be for either spouse to challenge the prenuptial agreement during divorce proceedings.

Examples of illegal provisions might include one spouse waiving the requirement of the other to provide child support for their shared children in a prenuptial agreement. Such support is for the benefit of the children, and therefore a parent does not have the authority to preemptively waive that obligation in a contract with the other parent.

It is generally good practice to cooperate with an attorney to better ensure that terms in an agreement abide by state law and to talk in depth about expectations for the marriage and also what would happen during a divorce while negotiating a prenuptial agreement. Understanding what to include and what not to include in a prenuptial agreement may help people create more useful and enforceable documents.

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