Many spouses approach their prenuptial agreements as if they are the "end-all-be-all" of premarital arrangements in which they can basically get their soon-to-be spouse to agree to anything. However, in terms of state family law, there are certain things that your prenuptial agreement cannot do.
What follows are some of the most important points of confusion regarding prenuptial agreements. Many people have the misconceptions that premarital agreements can do the following when, in fact, they cannot:
- Your prenuptial agreement cannot require anything illegal. This becomes a point of confusion when a spouse doesn't realize that what he or she is requesting in the prenup is actually against the law. If any kind of illegal requirement is placed within the document, it will jeopardize the legal sanctity of the entire agreement.
- Your prenuptial agreement cannot establish decisions about child custody or child support. Courts will always have the final ruling when it comes to the calculation of child support obligations. While parents can agree to such arrangements out of court, a judge will always need to approve them and could adjust them if deemed appropriate. The same goes for child custody arrangements. The court will always have the power to deem what's in the best interest of the child.
- Your prenup might not be able to erase your right to receive alimony. Although many spouses may include such an arrangement in their prenuptial agreement, and sometimes it holds water with the court, there's a good chance that a judge will strike down a clause that prohibits a spouse from receiving spousal maintenance.
There are other things that prenuptial agreements cannot do for spouses. Be sure to fully understand the limitations postmarital agreements – and your own agreement – before you draft and sign such a document prior to marriage.
Source: Findlaw, "What Can and Cannot be Included in Prenuptial Agreements," accessed March 01, 2018