Understanding the Limitations of a Prenuptial Agreement

  •   |   Meghan Freed

Prenuptial agreements have a lot of benefits — but what are their limitations?  If you considering a prenup before you tie the knot, it’s also essential to understand what it cannot do. So read on for some of a prenup’s benefits and limitations.

Prenuptial Agreement Benefits

Prenups enable prospective spouses to decide and delineate, before marriage, their rights and obligations if their marriage ends.  This can include because of the death of one spouse or by divorce.  Prenups allow you and your fiancé to determine together, in advance, what you think is fair and how things will work should your marriage end.  Prenuptial agreements don’t indicate 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 productive.  They explain 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 might have had otherwise.

Concerning protecting your finances, prenuptial agreements can be very flexible and accommodating. For example, 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.

Read: What Is a Prenup?

Prenuptial Limitations

Prenup Limitation 1: Prenups can’t decide on child custody issues.

If your marriage ends in divorce, the court will have the final word regarding child custody, visitation, and child support.  The court considers several factors to ensure their decisions uphold the child’s best interests.  Because the “best interests” standard is critical, courts focus on providing children with enough financial support.  The court also supports children’s relationships with fit parents, access to proper education and healthcare, and so on. In addition, because child welfare is considered a matter of public policy, Connecticut courts don’t honor prenuptial agreement provisions that interfere with a child’s best interests.

Prenup Limitation 2: Prenups 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.  As a result, judges may sometimes look closely at a prenuptial agreement to ensure it doesn’t encourage divorce in its language or structure. For example, 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.

Prenup Limitation 3: A prenup can’t have rules about non-financial matters.

You may want to discuss 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 may 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.

Prenup Limitation 4: 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 a prohibited provision, you would risk invalidating all or part of your prenup document.  Connecticut courts will also likely reject “unconscionable” prenup provisions (i.e., unreasonable, immoral, or unfair provisions in some way).

Enforceability of Prenuptial Agreements

The laws governing the 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 and the ability to withstand Connecticut courts’ scrutiny, you’ll want to enlist a lawyer knowledgeable about recent court decisions and their impact on your matte. Freed Marcroft’s lawyers can help you create or strengthen a prenup to protect your finances and future.

Read: The Real Reason Prenups Are Good

Next Steps

To start planning your prenup and setting up a strong foundation for your marriage, reach out. Our first step at Freed Marcroft, the Goals & Planning Conference, is designed to unveil your true goal. Then, we analyze those goals and present you with recommendations and options to move forward.

Schedule your Goals & Planning Conference today, or contact us here.

Freed Marcroft LLC

Freed Marcroft LLC