In the past, prenuptial agreements (prenups) were viewed in a generally negative context. In popular entertainment like books, movies and television programs, the mere suggestion of a prenup meant that one party was likely already planning on divorce – or something more nefarious. In modern times, however, people have gained an understanding and appreciation of what these documents were always intended to accomplish – indexing and clarifying the assets and debts each partner brings into the relationship. Unfortunately, this new level of comfort also brings with a misunderstanding of what the document can and cannot do.
Here are three provisions that couples might attempt to draft in the prenup that should never be included:
- Lifestyle provisions: The prenuptial agreement should focus strictly on financial matters rather than personal preferences. It is not uncommon for individuals to attempt to write a provision that extends to who is responsible for what chores (who will do the dishes, empty the trash, clean the cat litter) or how often the couple will engage in intimacy. Additionally, couples might attempt to include language about health and fitness, intending to put a limit on weight gain or stipulate how often a spouse visits the gym.
- Divorce inducements: If the prenuptial agreement seems to offer a financial incentive toward divorce, the provision will likely be set aside. Language discussing spousal support or property division will raise a red flag when a judge is reviewing the document.
- Child support or child custody: These issues cannot be addressed prior to the marriage. The court retains the power of final say in child support or custody issues because the best interest of the children must be taken into account at the time of the divorce.
Couples are encouraged to draft a prenuptial agreement prior to their marriage. A well drafted document can relieve pressure if divorce becomes a reality. The prenup can help identify non-marital assets and determine debt responsibility for the divorcing couple going forward.