When you’re drafting a prenup, you’re essentially addressing a divorce before it happens. If you never get divorced, it doesn’t matter—you simply don’t use the document. But if you do, then some decisions have already been made.
For the most part, people use prenuptial agreements for asset division or protection. Someone who is a business owner may want to ensure that they retain 100% control of the business, for example. Someone who received a significant inheritance from their parents may want to include it in a prenup to ensure that it stays in the family. But are you allowed to use the document for anything you want?
There are some restrictions
You can’t add provisions about just anything. For example, a divorce may also mean dividing up custody of children—but you can’t waive your right to custody or declare that you get sole custody in a prenuptial agreement. You also can’t make any decisions about child support. All of this has to be addressed during the divorce itself, with the child’s best interests put first.
Another thing to consider is alimony. People sometimes try to include alimony provisions in a prenup, such as stating how much should be paid or having one person waive their right to alimony. But this is one of the clauses that courts are very likely to strike down and not enforce in the event of a divorce. Much like child support, the court wants to decide that at the time of the separation.
Prenuptial agreements can be very helpful, but it’s important to know exactly how they work and what legal steps you need to take.
