December 24, 2015

Three Things a Prenup Cannot Accomplish

Prenup agreements garner a good deal of attention in the media as well as in films and on television. A great deal of the information floating about regarding prenuptial agreements is factually and legally incorrect.

A good deal of confusion stems from what a prenup can and cannot do when it comes to the provisions of the agreement itself. Before considering entering into a prenuptial agreement, it is important to understand what can and cannot be done with this type of contract.

Child Support

A considerable amount of confusion centers on the role a prenuptial agreement is capable of playing in regard to child support in the event of a divorce. A surprising number of people believe that a prenup is capable of addressing issues pertaining to child support. In reality, this is not the case. A prenuptial agreement cannot lawfully include provisions addressing child support in the event of a divorce.

For example, a prenuptial agreement cannot include provisions relieving a party of an obligation to pay child support. In the final analysis, child support is for the benefit of minor children born during the course of the marriage. Child support is awarded to further the best interests of a minor child. By extension, an agreement in advance of marriage that impacts child support is deemed to negatively impact the best interests of a child.

Child Custody

Limits exist on what a prenup can do in regard to the custody of children that are yet to born. In other words, a child custody agreement cannot address custody issues pertaining to children that may be born during the course of an impending, future marriage.

Promote Divorce

Other limitations exist regarding what can be included in a prenup based on public policy. As a matter of public policy, a contract cannot be crafted that promotes divorce.

This prohibition does present a variety of gray areas in regard to what permissibly can be included in a prenuptial agreement. For example, a prenuptial agreement that provides bountiful benefits in the event a party to the agreement files for divorce because the other spouse has an affair might be unenforceable as being a contract promoting divorce. In the end, ascertaining whether a prenup promotes divorce is determined on a case by case basis.

A skilled attorney can assist a person in deciding whether a prenup is necessary. A lawyer typically schedules an initial consultation to discuss this type of issue with a prospective client at no charge.