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.

In prenuptial agreements, both illegal and unfair provisions can lead to sections of the contract being unenforceable, or even the entire agreement being invalidated by a court. Below is a list explaining what these illegal and unfair provisions might include:

  1. Illegal Provisions:
    • Definition: Any clause that stipulates an act contrary to law.
    • Examples:
      • Tax Evasion: A clause that agrees to non-compliance with federal tax laws to save money.
      • Illegal Activities: Provisions that involve or promote any form of illegal activity, such as unlicensed business operations or illegal drug transactions.
      • Waiving Legal Rights: Clauses that attempt to waive rights guaranteed by law, such as the right to child support, which a parent cannot legally waive.
  2. Unfair Provisions:
    • Definition: Clauses that are significantly one-sided, benefiting one spouse disproportionately or misleading one party about crucial information.
    • Examples:
      • Disguising Assets: Including statements that misrepresent or hide one party’s financial assets, such as a large inheritance, to deceive the other party.
      • Waiving Spousal Support: Clauses that prevent a spouse from receiving any spousal support in the event of a divorce, regardless of the circumstances, might be deemed unfair if the other spouse is significantly better off financially.
      • No Disclosure of Liabilities: Failing to disclose significant debts or liabilities which could influence the other party’s decision to enter into the agreement.
  3. Consequences of Illegal or Unfair Provisions:
    • Non-Enforcement: A court may choose not to enforce specific clauses that are illegal or unfair.
    • Risk to Entire Agreement: In severe cases, the presence of illegal or significantly unfair provisions can risk the enforceability of the entire prenuptial agreement.
  4. Preventive Measures:
    • Full Disclosure: Both parties should fully disclose their financial status, including assets and liabilities.
    • Legal Review: Each party should have their own legal counsel review the prenuptial agreement to ensure that it is fair and legal.
    • Negotiation: Provisions should be negotiated fairly with input from both parties, ideally with legal counsel present.
  5. Importance of Fairness and Legality:
    • Trust and Transparency: Establishing a prenuptial agreement based on fairness and transparency can prevent future legal disputes and maintain trust between spouses.
    • Legal Integrity: Adhering to legal standards ensures that the agreement holds up in court, protecting both parties’ interests.

Understanding and avoiding illegal and unfair provisions in prenuptial agreements is crucial for ensuring that the agreement is enforceable and both parties are protected under the law.

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.

Here is an expanded discussion on this topic for what is non-enforceable:

  1. Unenforceability of Personal Appearance Clauses:
    • Legal Basis: Clauses concerning a person’s weight or physical appearance are typically not enforceable in court.
    • Reasons for Unenforceability: Such clauses are considered personal choices and inherently private, and thus not suitable for legal regulation through a prenuptial agreement.
  2. Examples of Non-Enforceable Clauses:
    • Weight Requirements: Stipulations that require a spouse to maintain a certain weight.
    • Appearance Demands: Requirements for a spouse to adhere to specific beauty standards or undergo cosmetic procedures.
  3. Risks of Including Non-Enforceable Clauses:
    • Validity of the Agreement: Including such clauses can risk the overall enforceability of the prenuptial agreement.
    • Relationship Strain: These clauses can create unnecessary pressure and resentment, potentially harming the marital relationship.
  4. Recommended Alternatives:
    • Open Communication: Discussing concerns or preferences about physical health or appearance openly and directly with your partner, outside of a legal context.
    • Lifestyle Agreements: Couples can make mutual, informal agreements to support each other’s health and wellness goals without making them conditions of the marriage contract.
  5. Legal Advice:
    • Consulting an Attorney: Before finalizing a prenuptial agreement, it is advisable to consult with a family law attorney to ensure that all clauses are enforceable and appropriate.
    • Individual Rights: An attorney can also help clarify what can legally be included in a prenuptial agreement and what might be considered overreaching or inappropriate.
  6. Focus on Mutual Respect and Values:
    • Building a Healthy Relationship: Fostering a relationship based on mutual respect, understanding, and shared values rather than attempting to control physical aspects through legal means.
    • Supportive Partnerships: Encouraging a supportive environment where both partners feel valued for who they are, not just their physical attributes.

By understanding the limitations and potential pitfalls of including personal appearance clauses in prenuptial agreements, couples can better prepare documents that strengthen their partnership and respect individual autonomy.

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. 

Courts typically approach clauses about children in prenuptial agreements with caution. This is primarily because decisions regarding children must be based on their best interests at the time of the court’s review, not predetermined by an agreement made before such circumstances are known. However, some aspects concerning children and their protection in case of a divorce can still be addressed.

Below is an expanded discussion on this topic:

  1. Unenforceability of Child Care Clauses:
    • Court’s Focus: Courts prioritize the best interest of the child, which can change over time and may not be accurately anticipated in a prenuptial agreement.
    • Types of Unenforceable Clauses: Terms that attempt to dictate custody arrangements, child support amounts, or parenting responsibilities are typically not upheld.
  2. Provisions Related to Children from Previous Marriages:
    • Asset Protection: It is possible to include provisions in a prenuptial agreement that specify how assets will be protected or passed on to children from previous relationships.
    • Clear Intentions: Such clauses can clarify the intentions of both spouses regarding the inheritance and financial protection of children not biologically related to both parties.
  3. Legally Supportable Provisions:
    • Educational Trusts: Establishing educational trusts or funds specifically earmarked for the children’s education.
    • Life Insurance: Including requirements for maintaining life insurance policies with the children named as beneficiaries to secure financial support in case of a parent’s death.
  4. General Recommendations:
    • Legal Guidance: Always seek advice from a family law attorney to ensure any clauses related to children are crafted within legal bounds and reflect current laws and practices.
    • Flexibility and Future Amendments: Considering provisions that allow for future amendments to the agreement, reflecting changes in the children’s needs or family dynamics.
  5. Focus on Financial Security:
    • Designation of Assets: Explicitly listing assets that should be passed to children, such as family heirlooms, properties, or specific investments.
    • Protection Against Claims: Ensuring that certain assets are shielded from potential divorce disputes to guarantee they remain intended for the children.
  6. Communication and Clarity:
    • Discuss Expectations: Couples should discuss and clearly articulate their intentions regarding the care and financial security of all children involved, to prevent misunderstandings and legal challenges.

Speak with a Family Law Attorney in Alpharetta

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 case evaluation.