A prenuptial agreement (or “prenup”) is a legal contract entered into by a couple before marriage that outlines how their assets and debts will be handled in the event of a divorce. While prenups can address a wide range of financial matters, there are several important issues that cannot be included or enforced in a prenuptial agreement. Understanding what a prenup does not cover is essential to ensuring that your agreement is both valid and effective. Here are the key areas a prenup cannot address.
- Child Custody and Support
One of the most significant limitations of a prenuptial agreement is that it cannot determine child custody or child support arrangements. Courts in New Jersey (and across the U.S.) prioritize the best interests of the child when making custody and support decisions. Therefore, any attempt to include provisions about future custody or child support in a prenup will not be legally enforceable.
Child custody and support decisions are based on current circumstances at the time of the divorce, not on pre-arranged agreements. The court will look at factors such as the parents’ income, the child’s needs, and the overall living situation to make a fair determination for the child. Even if both parties agree on custody and support terms in the prenup, the court will not be bound by these terms if they do not serve the best interests of the child.
- Non-Financial Personal Matters
A prenup is primarily a financial document, and as such, it cannot include provisions about non-financial personal matters. For example, a prenuptial agreement cannot:
- Dictate household responsibilities: You cannot use a prenup to enforce specific household duties, such as who will handle cooking, cleaning, or other day-to-day tasks.
- Set terms for intimacy or affection: Prenups cannot include requirements for intimacy or affection between the spouses.
- Regulate decisions about children’s upbringing: Issues such as where children will attend school, what religion they will be raised in, or how they will be disciplined cannot be dictated by a prenup.
Such personal matters are not enforceable under the law and should be addressed outside the context of a legal contract.
- Waiving Alimony Rights in Certain Situations
While it is possible for a prenuptial agreement to address alimony or spousal support, there are limits to how far this can go. In some cases, courts may find a waiver or limitation on alimony in a prenup to be unfair or unconscionable, particularly if it leaves one spouse financially disadvantaged after a long marriage.
For example, if a prenup states that one spouse will receive no alimony, but that spouse later becomes financially dependent on the other during the marriage, the court may rule that enforcing the alimony waiver would be unjust. Courts have the discretion to override such provisions if they deem them to be unreasonable or unconscionable at the time of divorce.
- Provisions That Encourage Divorce
Prenuptial agreements cannot include terms that incentivize or encourage divorce. These are often referred to as “lifestyle clauses” and may include provisions such as rewarding one spouse financially if the marriage ends in divorce. Courts tend to reject these types of clauses because they go against public policy, which encourages the preservation of marriage.
For example, if a prenup includes a clause that states one spouse will receive a large financial payout for filing for divorce after a certain number of years, the court will likely find that clause unenforceable.
- Unfair or Unconscionable Agreements
Prenups that are considered overly one-sided or “unconscionable” may not hold up in court. If the terms of the agreement are so unfair that one party is left at a severe financial disadvantage, the court may refuse to enforce those provisions. This is particularly true if one party signed the agreement under duress, was not fully informed about the other party’s assets and debts, or did not have independent legal representation at the time of signing.
For example, if a prenup leaves one spouse without any assets or financial support after a long-term marriage, while the other spouse retains the majority of the assets, the court may find the agreement to be unfair and refuse to enforce it.
- Future Decisions About Marital Property
A prenuptial agreement can determine how assets and debts that exist before the marriage will be divided in the event of divorce, but it cannot always predict how property acquired during the marriage will be treated. In New Jersey, any assets or debts accumulated during the marriage are generally considered marital property and are subject to equitable distribution.
While a prenup can provide guidelines for how future assets will be divided, it may not be able to account for unforeseen changes, such as a significant change in financial circumstances, a business venture started during the marriage, or inheritance received by one spouse. In some cases, courts may override the provisions of a prenup if they conflict with state laws governing equitable distribution.
- Provisions Regarding Illegal Activity
A prenup cannot include any provisions that involve illegal activities. For example, if a prenup includes clauses that require one spouse to engage in illegal acts, such provisions are invalid and unenforceable. Courts will not uphold any part of a prenuptial agreement that violates the law or encourages illegal behavior.
While a prenuptial agreement is a powerful tool for protecting your assets and setting clear financial expectations in a marriage, it has its limits. Child custody, non-financial personal matters, and unfair provisions are among the issues that a prenup cannot address or enforce. To ensure that your prenuptial agreement is valid and effective, it’s important to work with an experienced family law attorney at Ziegler Law Group who can guide you through the process and help you create an agreement that is legally sound and tailored to your needs.
