What can’t you put in a prenup?

On Behalf of | Apr 27, 2022 | Divorce |

If you’re getting divorced and you know that you already have a prenuptial agreement, odds are that you are counting on that prenup to offer you some level of protection and to help guide the divorce process to solutions that you’ve already agreed upon. For instance, maybe your main goal is to retain the assets that you acquired and the money that you earned, and a prenup that lists those assets can help you do so.

However, one reason that prenups are sometimes thrown out of court is that they contain provisions but you’re not permitted to put in that prenup. It’s very important to understand this both while drafting the document and after the fact, if you believe that a mistake may have led you to create an invalid prenuptial agreement. So what are some of the things that cannot go in the document?

Anything relating to child custody

You can never make child custody decisions in a prenuptial agreement. This would not be in the child’s best interests and it would not be fair to them. Even if your spouse agreed to give up custody or something of this nature, the court is not going to honor that and will simply make the custody decision during your case.

Assets that would leave them destitute

It’s also important that your spouse doesn’t leave the marriage with absolutely nothing. Even if they technically agreed to a prenup saying that you would get 100% of the assets in a divorce, the court is not going to do something that would leave them destitute. This is to protect someone from signing a very unfair prenuptial agreement just because they desperately want to get married and then losing everything that they own in the divorce.

Moving through your divorce

The divorce process can be complex, whether you have a prenup or not. As you can see from the above, just the mere presence of a prenuptial agreement does not necessarily dictate exactly what is going to happen. This can still be a complicated process with a lot of different steps that need to be taken to ensure that everything is done properly.

As you move through your divorce and take these steps, you also need to make sure that you understand exactly what legal rights and obligations you have.