Understanding what can and cannot be included in a prenuptial agreement is essential for creating an effective document that will hold up in court. While prenups offer considerable flexibility in addressing financial matters, certain provisions are prohibited by law or contrary to public policy. Knowing these boundaries helps couples craft agreements that protect their interests while avoiding unenforceable clauses that could jeopardize the entire document.
Property and Asset Provisions
Prenuptial agreements most commonly address how property will be classified and divided. Couples can designate specific assets as separate property that will not be subject to division upon divorce, regardless of how state law would otherwise treat them. This includes real estate, investments, business interests, retirement accounts, and personal property owned before marriage or acquired during marriage through inheritance or gift.
The agreement can also establish how assets acquired during the marriage will be treated. Some couples agree that all income and property accumulated during marriage will be shared equally, while others prefer to keep earnings separate. Appreciation of separate property can be addressed as well, specifying whether growth in value during marriage becomes marital property or remains with the original owner.
Debt Allocation
Allocating responsibility for debts is a common and enforceable prenuptial agreement provision. Couples can specify that premarital debts remain the sole responsibility of the spouse who incurred them, protecting the other spouse from creditors. Student loans, credit card balances, and business debts acquired before marriage can all be addressed to ensure one spouse does not become liable for the other's obligations.
The agreement can also establish how debts incurred during marriage will be handled. Couples might agree to share responsibility for certain types of marital debt while keeping others separate. For example, joint household expenses might be shared while debts related to one spouse's business remain that spouse's individual responsibility.
Spousal Support and Alimony
Prenuptial agreements can address spousal support in various ways, though courts in some states may modify or reject these provisions if they would leave one spouse destitute. Couples can agree to waive alimony entirely, though this provision is more likely to be enforced when both spouses have independent means of support. Establishing specific amounts, durations, or formulas for calculating support based on length of marriage or other factors provides certainty for both parties.
Some agreements include escalator clauses that increase support amounts based on the length of the marriage or changes in circumstances. Others establish caps on support regardless of the parties' financial positions at divorce. Courts will review these provisions for basic fairness and may refuse to enforce terms that would result in one spouse requiring public assistance.
Business Interests and Intellectual Property
Protecting business interests is a primary reason many people seek prenuptial agreements. The agreement can establish that a business owned before marriage remains separate property and that the non-owner spouse has no claim to its value or appreciation. For businesses started during marriage, the agreement can specify ownership percentages, valuation methods, and buyout procedures if the marriage ends.
Intellectual property rights, including patents, copyrights, trademarks, and royalty streams, can similarly be addressed. Couples can agree that creative works and inventions belong solely to their creator or establish sharing arrangements for income generated during the marriage. These provisions are particularly important for authors, artists, inventors, and entrepreneurs whose work may generate significant value over time.
Inheritance and Estate Planning
Prenuptial agreements can coordinate with estate planning documents to ensure consistent treatment of assets. Couples can waive rights to inherit from each other or agree to provide specific bequests. These provisions are especially important in second marriages where one or both spouses want to preserve assets for children from prior relationships while still providing for the current spouse during their lifetime.
The agreement can address life insurance requirements, specifying amounts and beneficiary designations that must be maintained. It can also establish whether a surviving spouse will have rights to remain in the family home or receive support from the estate. Coordinating these provisions with wills and trusts ensures comprehensive planning that reflects the couple's actual intentions.
What Cannot Be Included
Certain provisions are prohibited in prenuptial agreements regardless of what the parties might prefer. Child custody and visitation arrangements cannot be predetermined because courts must make these decisions based on the children's best interests at the time of divorce. Parents cannot waive their children's right to support, and any provisions attempting to limit child support will be unenforceable.
Provisions that violate public policy are similarly prohibited. Courts will not enforce terms that incentivize divorce, such as bonuses paid upon divorce or penalties for remaining married. Illegal activities cannot be sanctioned through prenuptial agreements. Personal behavior clauses addressing matters like weight maintenance, household chores, or frequency of intimacy are generally unenforceable and may cause courts to view the entire agreement with skepticism.
Provisions Courts May Reject
Beyond outright prohibited terms, some provisions fall into a gray area where enforceability depends on specific circumstances and judicial discretion. Completely one-sided agreements that leave one spouse with nothing may be found unconscionable, particularly if that spouse gave up career opportunities during the marriage or if circumstances changed dramatically.
Provisions waiving rights to property division may be rejected if one spouse would be left destitute or dependent on public assistance. Courts balance the freedom to contract against the potential for abuse and may modify unconscionable terms rather than throw out the entire agreement. The more extreme or one-sided a provision, the greater the chance a court will intervene.
State-Specific Considerations
What can be included in a prenuptial agreement varies somewhat by state. Some states follow the Uniform Premarital Agreement Act, while others have developed their own standards through legislation and case law. Community property states and equitable distribution states may treat certain provisions differently, making it essential to understand the specific rules in your jurisdiction.
Working with a family law attorney familiar with your state's requirements ensures your agreement includes enforceable provisions and excludes prohibited ones. An experienced attorney can also help craft provisions in ways that maximize the likelihood of enforcement while achieving your underlying goals. Taking time to understand what your prenup can and cannot accomplish leads to realistic expectations and an agreement that serves its intended purpose.