If you are engaged or are debating marriage, you likely have considered whether a prenuptial agreement is right for you. Prenuptial agreements are valuable for keeping a person’s assets as well as debts separate from those of a future spouse. While some people see prenuptial agreements as unromantic, they serve a much more practical purpose of avoiding confusion and uncertainty in case a marriage does not last and assets must be divided. 

While prenuptial agreements can be advantageous in most marriages, they are most commonly used among couples who are entering into a second marriage, couples who have children from a previous marriage, and individuals who have a great number of debts or assets. Once you decide to create a prenuptial agreement then comes the challenge of deciding exactly what to include in the agreement. Instead of listing all of the things that you might want to include while creating a prenuptial agreement, the following will discuss some of the things that you should never include because they will not be legally enforceable. 

Illegal and Unfair Provisions

Illegal statements included in any contract will not be enforced. This also holds with prenuptial agreements. This means that a person cannot include a clause in a prenuptial agreement stipulating any act that is against the law. For example, a prenuptial agreement cannot include a statement that a couple agrees to not conform to federal tax law so they can save more money for themselves.

Similar to illegal terms, unfair terms in prenuptial agreements are also not enforceable. Unfair in this context means provisions that benefit one spouse much more than the other or statements that deceive one party about the other individual’s financial status. For example, a spouse with a large inheritance cannot include a statement in a prenuptial agreement that makes it appear as if the person no longer has these assets. Including this type of provision in a prenuptial agreement creates a risk that a court might not find the prenuptial agreement enforceable.

Non-Financial Requirements

Prenuptial agreements that include requirements about a person’s weight or physical appearance tend to not be found enforceable. This means that you cannot agree to the weight of your husband or wife as a term of marriage. If these issues are important, it is a much better idea to discuss these things with your future spouse rather than attempt to create a legal contract about these terms.

Agreements Involving Children

There is a tendency among courts to not find agreements about children in prenuptial agreements enforceable. Instead, courts will likely find terms discussing the care of children unenforceable. It is possible, however, to include details that any children from a previous marriage should be protected in case of a divorce. As a result, couples can express whether they would like certain assets passed on to their children. 

Speak with a Family Law Attorney
Entering into marriage is an excellent time to speak with a knowledgeable family law attorney, who can review your situation and determine whether you have considered all possible issues. Contact Vayman & Teitelbaum, PC today to schedule a free case evaluation.