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5 Things You Cannot Include in Your Prenuptial Agreement

| May 23, 2016 | Firm News

Prenuptial agreements can be an incredibly beneficial tool for couples who are getting married. They allow you to define the various financial terms of your impending marriage, protect assets and lay out expectations in case of a future divorce, and they provide an impetus for couples to talk about their finances before getting married and ensure they are on the same page.

However, there are a lot of misconceptions about what can and cannot legally be included in a prenuptial agreement. There are many things that these contracts cannot do, and if provisions are included which a court finds to be invalid, they will not be upheld. Below we have outlined five key elements which you cannot include in a prenuptial agreement in the state of Florida.

1) Nonfinancial Rules

Prenuptial agreements are intended to set forth clear rules and instructions regarding the various financially-related issues faced by couples in a marriage and divorce. As such, your agreement cannot include terms or rules regarding nonfinancial matters. Some people mistakenly believe that they can use a prenup to establish ground rules in their marriage for things like how to raise the children, who will perform particular chores, how the couple will approach religion, or any number of other possible personal or private domestic issues. If you do include such a provision in your prenuptial agreement, it is unlikely that it will be upheld in court if the document is ever challenged.

2) Anything Illegal

This should be common sense, but you cannot include anything illegal in your prenup. Your agreement cannot override or invalidate statutes, nor can you include provisions that require either spouse to perform illegal actions. All the terms in your agreement must be compliant with all local, state, and federal laws and restrictions.

3) Terms Involving Child Custody or Support

Florida law prevents couples from including anything in their prenuptial agreement involving determinations on child custody or child support. For example, you cannot validly state in your prenup that one parent will not be obligated to pay child support if the couple divorces or that one parent would be granted sole custody following the end of the marriage. The final say on these matters will always be left to the court, and the judge will always seek to do what is in the best interests of the child or children involved. Since the terms you agreed upon regarding child custody or support in your prenup may not be in the best interests of the child, those terms will not be considered valid.

4) Unfair or Unreasonable Terms

This is a more subjective category than the others, but if a judge determines that provisions included in your prenuptial agreement were inherently unfair towards one party, or unreasonable in any way, then they will likely be invalidated. This is true if the judge finds that the terms were unfair to begin with, or if he or she finds that it would be unfair to uphold a provision that was included in the prenup. For example, if adhering to the terms of the prenup in a divorce would leave one spouse unable to reasonably afford housing, food, and other essentials, the judge would likely override the hardship-inducing provisions.

5) Incentive for Divorce

You cannot include any terms or provisions in your prenup which could be considered an incentive for divorce. Premarital agreements are meant to define financial terms should a divorce ever occur, but the terms would likely be considered invalid if they could be seen as the direct impetus for a divorce.

If you are considering drafting a prenuptial agreement, or you are facing a divorce and have questions about the enforceability of provisions within an existing prenup, please contact the attorneys of Rotella & Hernandez today to set up a consultation.