Family Law Blog

Will My Prenuptial Agreement Hold Up in Court?

Friday, July 06, 2018

Before any marriage, it is a good idea to consider the utilization of a prenuptial agreement. Although these agreements have a stigma attached to them where it looks like one spouse doesn't think the marriage will last, they are excellent tools in case it, in fact, doesn't work out. Often it works to protect both parties, but unfortunately, it isn't something that one spouse can use to give themselves an unfair advantage. A prenuptial agreement needs to be both reasonable fair and lawful in order for it to hold up in court. There are basic matrimony laws in which a prenuptial agreement cannot overcome. If you draft a prenup with gaining an advantage over your spouse in mind, there is a strong likelihood that it will be invalidated through the courts.

What You Can't Include in a Prenuptial Agreement?

If you want your prenuptial agreement to be upheld by the courts and not rendered invalid, you may want to avoid including certain aspects. Sometimes just certain parts of a prenuptial agreement may be rendered invalid, but if you put in too many inappropriate clauses, you risk the whole thing being thrown out.

  • Child Custody and Support - The court will always have the final say in decisions regarding child custody and the support provided by the other party, because it works in the best interest of the child and not the parents.
  • Right to Alimony - A prenuptial agreement cannot include a waiver for alimony in the event of a divorce.
  • Financial Incentives for Divorce - Despite the stigma, a prenuptial agreement isn't a document stating there will be a divorce, and thus it cannot have any financial incentives, or otherwise, encouraging divorce within. This also means detailing how assets will be split in the event of a divorce. Instead, it might be better to think a prenuptial agreement as a protection of assets you already have.
  • Rules About Personal Life - You want your wife to do the dishes every night? Is your husband in charge of all lawn work? While a comical and almost handy agreement, these sort of personal rules cannot be included in a prenuptial agreement. It limits personal freedoms and it will not hold up in court if you state that your spouse breached those terms.

So What is a Prenuptial Agreement For?

It is often better to think of a prenup as a protection for your current assets and not your future marital assets. For example, if you own family property or businesses, a prenuptial agreement can make sure they help stay in the family. It can also be a tool to protect a child's asset from a previous marriage or even protect yourself from a spouse's debt. Often in marriage, the assets are combined, but a prenuptial agreement helps make sure you retain what you had before in the event of a divorce.

If you want to learn more about prenuptial agreements or need representation in a divorce, contact us today.