What Can’t You Do with a Prenuptial Agreement?

A prenuptial agreement is an effective tool to help you keep your finances separate, protect yourself from potential debt, keep your property in your family, clarify who is responsible for what during your marriage and planning what happens to your property in the event of a divorce. However, there are limits to what prenuptial agreements can accomplish.

The general rule is that anything illegal or “unconscionable” is off limits with a prenup. Here are some examples:

• Restricting rights to child support, custody or visitation: Child support is considered a right of every child, which means no court will honor any prenuptial agreement that involves one or both spouses either limiting or forgoing child support. Additionally, visitation and custody sharing are determined by what is in the best interests of the child, and so courts will not allow prenuptial agreements to interfere with those decisions.
• Encouraging a future divorce: Sometimes, a judge will analyze how a prenuptial agreement specifies the potential split of assets in the event of a divorce and declare the agreement void because it makes divorce lucrative or beneficial for one of the spouses.
• Making certain types of rules: Although prenups can be used to outline certain financial guidelines for the marriage, they cannot be used to determine responsibility for work around the house, agreements about having or raising children or which last name a spouse will use.

In some cases, courts may strike certain elements of a prenup, but keep the rest of the agreement intact. In others, the court might void the entire document and ask you to create a new version.

In any case, it’s important to understand the capabilities and limitations of a prenup before filing yours with the court. For more information on how to proceed, meet with a skilled Long Island family law attorney at Bryan L. Salamone & Associates.