Most have a preconceived notion about prenuptial agreements: when they are needed, who uses them, what provisions they should include. There are many facets to understand about writing a prenuptial agreement, however, including prohibited aspects and items that might invalidate the agreement altogether.
Generally, a prenuptial agreement includes some basic provisions that deal with division of property upon divorce. These include the division of property owned between the couple, whether particular items are considered community property or separate property, ownership of the marital residence, responsibility for marital debts, distribution of property on death, although the couple's estate planning must also be updated to reflect this, and in most states, alimony obligations.
The prenuptial agreement should also include the financial responsibilities during marriage, under which state's law the agreement is - other wise the agreement will be under the state of divorce and not the state of marriage, should they be different - how disputes over the agreement are to be resolved (mediation, arbitration, etc.) and the s unset clause, which many couples use to allow their prenuptial agreement to no longer be valid after a certain number of years of marriage.
Though some might think that virtually anything dealing with marriage, children or assets can be put into a prenuptial agreement, there are some restrictions. Agreements cannot contain any clause regarding custody of the children, including aspects such as which religion to raise them or where they should attend school, visitation to the children, child support and anything that is thought to encourage divorce. Anything "illegal" is also banned from prenuptial agreements, as with most contracts, as well as anything "unconscionable," or considered unfair.
Most states permit prenuptial agreements to discuss alimony; however, a court is allowed to invalidate certain alimony provisions from an agreement if the judge believes them to be unjust. This would typically occur in such instances where a marriage was so long that the difference between spouses' incomes created a disparity or if little or no alimony is being paid.
Some couples choose to include the division of household responsibilities or similar daily tasks into their prenuptial agreement, but such a decision can backfire if the couple later divorces and uses their prenuptial agreement in court. Everyday tasks and responsibilities can cloud the agreement and make it more likely to get invalidated in the face of discerning serious matters. If ensuring that the agreement be kept valid were it to ever be put to use is important to a couple, they might want to have the household responsibilities outlined in a separate agreement.
Though some try to create a do-it-yourself prenuptial agreement, it is always best to rely on the help on an experienced divorce attorney to guide you through the process. This will ensure that both parties get treated fairly, that individual interests are catered to and that all aspects of a proper prenuptial agreement are fully addressed. With over 25 years of combined legal experience, the attorneys at P&P can guide you through a prenuptial agreement, estate planning or divorce. Contact us today to schedule a free initial consultation.
