A lot of couples mistakenly buy into the myth that by agreeing to a prenuptial agreement they are setting themselves up for divorce. It’s as if even the acknowledgement that divorce exists predestines their marriage for failure.
So if you’re preparing for marriage, or think you might one day re-marry, you should take time learn what exactly goes into the document. There is a lot of confusion about what exactly a prenup can and cannot cover.
First, it is helpful to establish exactly what a prenup is designed to do. A prenup is intended to establish the rights and responsibilities of both parties if the marriage were to end in divorce or dissolution. One party might utilize a prenup to protect an inheritance or a business they own at the start of the marriage.
A prenup can address a number of different things. Generally, it covers:
- Property rights
- Rights for alimony or spousal support
- Rights for attorney fees
- Retirement accounts
- Each party’s finances
- Ownership rights in regards to life insurance or disability policies
Although there are some exceptions, a prenup cannot generally address anything evolving around children. For example, a couple could not establish a parenting-time schedule or child custody arrangement in a prenup.
Child support is another area that a prenup cannot cover, and the reason is straightforward.
“When we’re talking about the dissolution of a marriage, the court has a very strong interest in making sure the child’s best interests are protected,” said Cordell & Cordell family law attorney Mallory McClure. It’s very difficult for a court to believe that two parties, in contemplation of marriage, know what is in the best interest of a child, who may not even be born yet, many years ahead of time.”
Temporary support is another area off limits in prenups.
Although a prenup can mandate that there will be no alimony paid from one spouse to the other after a divorce is finalized, it cannot do away with support while the divorce is still pending.
“The reason for this is the court still considers parties to be married and therefore they have a duty to support each other,” McClure said. “Once the parties are no longer married, they’re free to decide amongst themselves what alimony obligations should be as long as it’s reasonable and neither party was under duress at the time they entered into the prenup.”
Along with temporary support, temporary attorney fees are also not covered by prenups.
While prenuptial agreements can be an effective tool to safeguard your most valuable assets in the event of divorce, it is best to consult with a family law attorney before agreeing to one to ensure that all the terms of the document are enforceable.