If you and your spouse or fiancé have the foresight to create a prenuptial agreement, congratulations. You are one of the few couples that acknowledges the risk of divorce and that wants to take proactive measures to avoid the most trying and costliest aspects of the process.
That said, while it is great that you and your partner can maturely discuss the worst-case scenario for your impending marriage, know that there are limitations to what a prenuptial agreement can and cannot do. FindLaw explores the limitations of a prenup and, more specifically, the types of provisions that render such agreements invalid. Below are five stipulations you cannot include in your prenuptial agreement.
Decisions regarding child custody or child support
When it comes to decisions regarding children, the courts have the final say. Texas, as does every other state in the union, considers the child’s best interests first and foremost. As a result, it will never deny a child to have a relationship with a fit parent or the right to financial support from the non-custodial parent, regardless of what a premarital agreement stipulates. As for calculating child support, the courts will use state guidelines to determine a proper amount.
Waivers to rights to alimony
Though state laws vary on this subject, most courts will not uphold provisions that waive the lesser earning spouse’s right to alimony. A few states strictly prohibit any stipulations of this nature, while most others limit parties’ abilities to give up alimony rights through premarital agreements.
If a provision in your alimony agreement pertains to illegal activity of any kind, the courts may render your entire document invalid. In the best-case scenario, the judge will consider the other provisions but with a now-wary eye.
Provisions that encourage divorce
If any part of your prenuptial agreement appears to offer financial incentives — or incentives of any kind — for divorce, the courts will automatically set it aside. Incentivizing language may be overt, such as one party promising a big payout to the other, or innocent, such as a provision that details how you and your partner plan to divide shared property.
Just a single mistake can render part or all of your prenuptial agreement invalid. To prevent that from happening, work with an experienced lawyer to develop a sound and legal agreement.