Understanding the Limitations of a Prenuptial Agreement

Prenuptial agreements enable prospective spouses to decide and delineate, prior to marriage, their rights and obligations if their marriage ends – either because of the death of one spouse or by divorce. A prenuptial agreement allows you and your fiancé to determine together, in advance, what you think is fair and what you want things to look like should your marriage end. Prenuptial agreements aren’t indicative of a lack of trust; often the associated conversations help lead to a stronger marriage.

Many of our clients have shared that they found the prenuptial agreement process not only productive but that it lead to a deeper understanding of their partner’s feelings about finances and the future. In their opinion,sitting down and discussing both partners’ future financial plans and expectations for the relationship led to a more solid foundation than they otherwise might have had.

If you are thinking about creating a prenup before you tie the knot, it’s also important to understand what a prenuptial agreement cannot do it Connecticut.   When it comes to protecting your finances, prenuptial agreements can be very flexible and accommodating. They can specify how you divide property in case of divorce, who owns your marital home, and what financial responsibilities you each share during the marriage, to name a few common functions.  

That said, here are some of the limitations of a prenup:

It can’t decide child custody issues.

If your marriage ends in divorce, the court will have the final word in matters of child custody, child support, and visitation. The court must consider several factors to ensure their decisions always uphold the child’s best interests. Because the “best interests” standard is considered to be of critical importance, courts will always make sure children have enough financial support, the means to keep up their relationship with a fit parent, access to proper education and healthcare, and so on. Because child welfare is considered a matter of public policy, no court will honor a private prenuptial agreement that interferes with a child’s best interests.

It can’t encourage divorce.

In the past, some courts considered divorce to be against the interests of society, and in some ways the tradition of that attitude still persists. Judges may sometimes look closely at a prenuptial agreement to make sure it doesn’t encourage divorce in its language or structure. If your prenup appears to offer a financial incentive for divorce, or if any provision seems to encourage divorce, it may be set aside by the court.

It can’t have rules about non-financial matters.

You may want to have a discussion with your soon-to-be spouse about household chores, raising children, changing last names, using birth control, and caring for pets before marriage—but these details don’t belong in your prenuptial agreement. Non-financial provisions are not legally binding, and they may actually invalidate your prenup. Upon seeing a list of personal preferences, a judge is likely to question the validity of your prenup or even strike it down entirely.

It can’t promote unconscionable or illegal activities.

As with most contracts, your prenuptial agreement cannot include anything illegal. If you did happen to make an illegal provision, you would risk invalidating all or part of your prenup document. Connecticut courts will also likely reject “unconscionable” prenup provisions (i.e. provisions that are unreasonable, immoral, or unfair in some way).

The laws governing enforceability of prenuptial agreements in Connecticut have evolved significantly over the last several years due to recent judicial decisions, and may well continue to do so.  To assist in your prenuptial agreement the ability to withstand Connecticut courts’ scrutiny, you’ll want to enlist the assistance of a lawyer who is knowledgeable about current court decisions and the impact on your matter. At Freed Marcroft, we can help you create or strengthen a prenup that will protect your finances and your future. Please contact us to learn more about our family law services or to schedule an appointment.

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