A prenuptial agreement (sometimes simply referred to as a “prenup”) is a powerful contract that can be useful in protecting one spouse’s assets from division by the court in the event of a divorce. Spouses can agree how any property they should acquire as a couple should be split and settle issues regarding spousal support through a prenup. While spouses on the verge of marriage have a great deal of flexibility in crafting a prenuptial agreement(s) that fits their unique situation and goals, there are limits to what can be accomplished through a prenuptial agreement. A prenuptial agreement that contains an illegal term or attempts to accomplish an illegal goal may be invalidated by the court.
You Cannot Agree Not to Seek Child Support.
Parents of children have a legal obligation to provide financial support to their children. As a result, a prenuptial agreement cannot contain a provision wherein the spouses agree that no child support will be sought on behalf of any children the couple may have in the event of a divorce. This is true regardless of what provisions for spousal support are agreed to in the prenuptial agreement.
For example, suppose Rick and Anita are about to be married. Anita has significant assets while Rick does not. Concerned that her assets may be at risk in the event of a divorce, Anita enters into a prenuptial agreement with Rick wherein the two of them agree that Anita will retain any appreciation on her separate assets that may occur during the marriage as well as any new assets she purchases with her separate funds. In exchange for this, Anita agrees she will be the primary residential parent for any children the couple may have and will not seek any spousal support from Rick. This latter provision will not be enforced – even if Rick’s assets are minuscule in comparison to Anita’s, he would still be responsible for paying child support to Anita based upon the child support guidelines.
You Cannot Use a Prenup to Hide Assets
Some wealthy soon-to-be spouses attempt to use a prenuptial agreement as a way to hide assets instead of merely protecting them. These spouses attempt to accomplish this by crafting a prenuptial agreement with very favorable terms and then inducing the other spouse to sign the agreement by claiming the spouse does not possess any valuable assets.
For example, using Rick and Anita’s case above, Anita might try to hide her assets by not telling Rick how valuable her assets are or the true extent of the assets she holds. Rick may then be persuaded to sign the agreement believing that in the event of a divorce he is not giving up much. Prenuptial agreements require that each party disclose to one another their true financial situations, including assets and debts, so that each party can make an informed decision about whether or not to sign the agreement.
You Cannot Enforce a Prenup Absent a Valid Marriage
It may go without saying, but there is no way that you can enforce a prenuptial agreement if you and the other person do not actually marry. If Rick and Anita decide to call the wedding off, then the prenuptial agreement as a matter of law is rendered null and void. If a valid prenuptial agreement is entered into but the marriage does not actually occur (because one spouse gets “cold feet,” one spouse dies on his or her way to the wedding, or weather causes the bride and groom to reschedule), then the agreement becomes invalid and unenforceable.