Prenuptial agreements, often referred to as prenups, are contracts entered into by couples before marriage. These agreements usually outline how assets and financial matters will be handled during the marriage and in the event of a divorce, although they may address other matters – either in addition to or instead of – as well.
These contracts have specific limitations that must be considered. Understanding the boundaries of what prenuptial agreements can and can’t do is essential for couples thinking about this route.
Legal limitations
One of the primary limitations of prenuptial agreements is that they can’t violate public policy or law. For instance, prenups can’t include provisions that are illegal or that encourage divorce. They also can’t dictate terms regarding child custody or child support following a divorce. The court determines these matters based on the child’s best interests, and a prenuptial agreement can’t predetermine or override the court’s authority.
Fairness and disclosure
Another critical limitation involves the issues of fairness and full disclosure. For a prenuptial agreement to be enforceable, it must be entered voluntarily by both parties, with a full and fair disclosure of all assets. If one party hides assets or if the agreement is heavily skewed in favor of one party, there’s a risk that a court may find it unconscionable and, therefore, invalid.
Changing circumstances
Prenuptial agreements are limited in their ability to account for future changes in circumstances. For example, significant changes in wealth, the birth of children or changes in career status can render an agreement invalid. While some prenups include clauses that address potential changes, they can’t cover every possible future scenario. Modifications are sometimes possible, depending on the circumstances.
Timing and coercion
Agreements signed under duress or coercion, or those signed without sufficient time for consideration and legal advice, may be deemed invalid. For example, presenting a prenuptial agreement shortly before the wedding, leaving the other party little time to consider and seek legal advice, can be grounds for challenging its validity.
As a result of these concerns – and given what is potentially at stake – both parties should have their own legal representative to review a prenup before the document is signed. This effort can better ensure that both parties’ interests and rights are properly considered.
