Prenuptial agreements get a lot of attention but are frequently misunderstood. Some people assume they are only for the wealthy. Others think they cover everything imaginable. The reality is more nuanced than either of those assumptions, and understanding what a prenuptial agreement can and cannot accomplish is the most useful starting point for any couple considering one.
Our friends at The Spagnola Law Firm work through this with clients regularly, and what a prenuptial agreement lawyer will tell you is that a well drafted prenuptial agreement is a powerful planning tool when used appropriately, but it has real limits, and knowing where those limits are matters just as much as knowing what it can do.
What a Prenuptial Agreement Can Cover
At its core a prenuptial agreement is a contract entered into before marriage that determines how specific financial matters will be handled if the marriage ends in divorce or death. Within that framework there is meaningful room to address a wide range of issues.
Property that each spouse brings into the marriage can be designated as separate property, meaning it remains with that spouse regardless of how long the marriage lasts. Future appreciation on premarital assets can similarly be protected. Debt each spouse brings to the marriage can be allocated so that one spouse is not held responsible for the other’s prior obligations.
Business ownership is one of the most common reasons people seek prenuptial agreements. An owner who wants to make sure their company remains entirely theirs in the event of a divorce, and that a former spouse has no claim to business growth that occurred during the marriage, can address those concerns directly in the agreement.
Other areas a prenuptial agreement commonly addresses include:
- How property acquired during the marriage gets classified and divided
- Whether spousal support will be paid if the marriage ends, and in what amount or for how long
- How specific assets such as family heirlooms, real estate, or investment accounts get treated
- What happens to inheritance each spouse receives during the marriage
- How financial responsibilities during the marriage are allocated
What a Prenuptial Agreement Cannot Do
The limits on prenuptial agreements are just as important to understand as their scope. Courts will not enforce provisions that cross certain legal and public policy lines, and an agreement that contains unenforceable terms can create problems for the provisions you actually care about.
Child custody and child support are the most significant areas a prenuptial agreement cannot control. Courts determine custody and support based on the best interests of the child at the time of the divorce, not based on what the parents agreed to before the child existed. Any attempt to predetermine those outcomes in a prenuptial agreement will not be enforced.
A prenuptial agreement also cannot include provisions that encourage divorce, penalize a spouse for filing for divorce, or address purely personal matters unrelated to finances. Provisions that are unconscionable, meaning so one sided that they shock the conscience of the court, are also vulnerable to being thrown out.
What Makes the Difference Between a Strong Agreement and a Vulnerable One
Beyond the content of the agreement, how it is executed matters enormously. Both spouses need to enter into it voluntarily, without coercion or undue pressure. Both need to have had adequate time to review it before signing. Full financial disclosure from both sides is generally required. And ideally both spouses should have independent legal representation.
An agreement that was signed the night before the wedding, without legal review, after one party presented it as a take it or leave it condition of the marriage, is exactly the kind of agreement courts look for reasons to invalidate.
Starting the Conversation Early
If a prenuptial agreement is something you are considering, starting the process early gives both of you the time to review, negotiate, and finalize an agreement without the pressure of an imminent wedding date. Reaching out to a family law attorney well before the ceremony gives your agreement the best possible foundation.