What Can and Cannot be Included in Prenuptial Agreements

CAN

Distinction between marital and separate property : State law will determine what is marital or community property and what separate property is. Marital property is generally divided equally or fairly in case of divorce or death. By having a prenuptial agreement, you can decide what happens to any property you acquire during the marriage.

Protection from the debts of the other spouse : In the absence of prenuptial agreements the creditors of one spouse can go after the marital property. A prenuptial agreement can be used to limit your debt liability.

Children from previous relationships : You can use a prenuptial agreement to ensure that your children from a prior marriage or relationship get to enjoy your property after your death.

Family Property : If you have inherited a family business or assets or are likely to do so in future, you can use a prenuptial agreement to keep them within your birth family and prevent them from going to your spouse.

Estate plan : Prenuptial agreements along with wills and trusts can be used to ensure that your estate is distributed according to your wishes.

Property distribution : In the absence of a prenuptial agreement, your state law will determine who gets what in case of a divorce. By having a valid prenuptial agreement, you can bypass your state law and decide you get what. In some states, a prenuptial agreement can have a provision which clearly states that no alimony will be paid in case of a divorce. Please check with your state laws.

Responsibilities : Here are some of the commonly included items:

• Separate business
• Household bills and expenses
• Income and tax returns
• Joint Bank Accounts
• Retirement benefits
• Investments
• Credit Cards
• Savings
• Property Distribution
• Education
• Dispute settlements

CANNOT

What can and cannot be part of a prenuptial agreement will depend on the state law. Here is a list of things that are generally not allowed to be included in a prenuptial agreement: Anything that is illegal or a violation of the law

You cannot include anything that is illegal or a violation of the law. Including such a provision will result in the agreement being declared.

Child Custody and Support : Your prenuptial agreement cannot decide on the issues of child custody and support. The court will decide these issues based on the state law.

Right to Spousal Support : A prenuptial agreement cannot have a provision wherein one spouse waives the right to alimony in case of divorce. State law varies on this. Check with your state laws. Some states do permit this provision.

Encourage Divorce : Courts will scrutinize the agreement minutely to look for provisions or terms that make divorce an attractive proposition for either party. Any provision that tends to encourage divorce will be struck down. Generally provisions that detail the division of property are considered as encouraging divorce.

Personal Matter : A prenuptial agreement can dictate the personal choices of either spouse – determining where to spend the vacations, how to address each other, who does what at home, etc. The agreement should be limited to financial issues. Provisions dealing with personal matters will be struck down. If you want to have an agreement on such issues, you can do so in a separate agreement.

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