Discussing a prenuptial agreement may not be the most romantic part of planning a wedding, but it can be an important part of planning for the future. A prenuptial agreement, often called a “prenup,” allows a couple to make certain financial decisions before marriage and establish how particular issues may be handled if the marriage ends in divorce or one spouse dies.

Contrary to popular belief, prenuptial agreements are not only for wealthy couples or people entering a second marriage. They can be useful for couples with businesses, real estate, significant assets, children from a previous relationship, or simply different financial circumstances.

However, a prenup cannot address every issue that may arise during a marriage or divorce. Understanding what a prenuptial agreement can and cannot protect is an important first step.

What Can a Prenuptial Agreement Protect?

A properly prepared prenuptial agreement can help couples define their financial rights and responsibilities before entering into marriage.

Separate Property and Assets Owned Before Marriage

One of the most common purposes of a prenup is to identify property that each person owned before getting married and clarify how that property should be treated in the future.

For example, a prenuptial agreement may address:

• Savings and investment accounts
• Real estate
• Family businesses
• Retirement assets
• Valuable personal property
• Inheritances or anticipated inheritances

Without clear planning, questions may arise over whether an asset remained separate property or became subject to division during the marriage. A prenup can establish expectations in advance and potentially reduce disputes later.

A Family Business or Professional Practice

Business owners may use a prenuptial agreement to address ownership interests in a company or professional practice.

A divorce can create complicated questions involving the value and division of a business, particularly when a spouse has contributed to the business or marital funds have been used in connection with it. A prenuptial agreement can help define how ownership interests will be treated and may provide greater clarity for both spouses.

Responsibility for Certain Debts

A prenup may also address financial obligations and debt.

For example, a couple may wish to clarify whether one spouse will be responsible for debt acquired before the marriage or how certain financial obligations will be handled during the marriage. This can be especially important when one future spouse enters the marriage with substantial student loans, business debt, or other liabilities.

Spousal Support

In some circumstances, a prenuptial agreement may address whether spousal support (alimony) will be paid in the event of a divorce and, if so, under what terms.

However, provisions involving spousal support may receive careful scrutiny. An agreement that is inequitable or otherwise does not meet applicable legal requirements may not be enforced as intended.

Financial Expectations During the Marriage

A prenuptial agreement may also establish certain financial expectations during the marriage. Depending on the couple’s circumstances, this could include how property will be owned, how income will be treated, or how certain financial responsibilities will be handled.

What Cannot Be Decided in a Prenuptial Agreement?

While a prenup can address many financial matters, there are important limits to what it can control.

Child Custody and Parenting Time

A prenuptial agreement cannot predetermine who will receive custody of children in the future or establish a binding parenting schedule in the event of divorce.

When parents separate, decisions involving children are generally based on the circumstances at that time and the child’s best interests. Parents cannot contract away a court’s responsibility to consider what arrangement is appropriate for a child.

Child Support

Similarly, a prenuptial agreement generally cannot establish terms that improperly limit or eliminate a child’s right to financial support.

Child support is intended to protect the interests of the child, and parents cannot simply agree in advance to avoid their legal obligations.

Illegal or Improper Requirements

A prenuptial agreement cannot require either spouse to engage in illegal conduct or include provisions that violate public policy.

Attempting to use a prenup to control highly personal aspects of a marriage may also create enforceability concerns. Not every promise or expectation between spouses belongs in a legally binding agreement.

A Prenuptial Agreement Must Be Properly Prepared

Simply putting an agreement in writing does not necessarily mean it will be enforceable.

Prenuptial agreements must meet certain legal requirements. Issues involving voluntariness, disclosure, timing, and the circumstances under which the agreement was signed can all become important. An agreement that was rushed, signed under pressure, or based on incomplete financial information may be challenged.

For this reason, it is generally best not to wait until the last minute before a wedding to begin discussing a prenuptial agreement. Giving both individuals sufficient time to review the proposed terms and seek independent legal advice can help create a more thoughtful and informed agreement.

Is a Prenuptial Agreement Right for You?

A prenup is ultimately a planning tool. For some couples, it can provide clarity and help protect important assets. For others, it may not be necessary.

The right approach depends on your financial circumstances, family situation, future plans, and goals for the marriage. Whether you own a business, have children from a previous relationship, expect to receive an inheritance, or simply want to have clear conversations about finances before getting married, it may be helpful to understand your options.

At Rodier Family Law, we help clients navigate important family law decisions with their individual circumstances and long-term goals in mind. If you are considering a prenuptial agreement, speaking with an experienced family law attorney can help you better understand what an agreement may be able to protect and the legal requirements involved.