Prenups: What They Can—and Cannot—Include

Prenuptial agreements, commonly called prenups, are often misunderstood. Some people think they’re only for the wealthy or that they’re a sign of mistrust. In reality, a well-drafted prenup is simply a tool for clarity, fairness, and protection for both partners. But while prenups can cover a lot, there are limits to what they can legally enforce.

A prenup can provide a strong foundation on which to build a marriage. Have all the tough conversations before getting married so there are no surprises later on.

What a Prenup Can Include

1. Division of Property and Assets Prenups can specify how property, investments, bank accounts, and other assets will be divided in the event of divorce or separation. This is especially important when one partner works and the other doesn't, has a 401K or other retirement accounts, owns a business, real estate, or inherited wealth.

2. Debt Responsibility A prenup can outline who is responsible for debts incurred before or during the marriage. This protects both parties from being saddled with the other’s financial obligations. Coming into the marriage with car loans, school debt, or credit card debt, these can all go into the prenup! And don't forget pre-existing child support orders. If one partner is responsible for child support, providing insurance, payment of extracurricular activities, etc., it's best to include the pre-existing liabilities in the prenup.

3. Spousal Support (Alimony) Couples can agree on the amount and duration of spousal support. Keep in mind, though, that courts may have the final say if the agreement is deemed unfair or unenforceable.

4. Estate Rights Prenups can define how assets will be distributed upon death, including protection for children from previous relationships.

5. Business Ownership If one or both partners own a business, a prenup can clarify how the business and any profits will be handled during the marriage or in the event of divorce.

What a Prenup Cannot Include

While prenups are flexible, there are limits. They cannot:

1. Violate the Law Prenups cannot enforce illegal provisions, such as requiring one party to break the law or waive child support.

2. Determine Child Custody or Support Courts prioritize the best interests of the child. Any clauses attempting to predetermine custody or child support are unenforceable.

3. Promote Fraud or Coercion Agreements signed under duress, misrepresentation, or without full disclosure of assets can be invalidated. Both parties must enter the agreement voluntarily and with full transparency.

4. Be Unconscionable If a prenup is extremely one-sided to the detriment of one party, a court may refuse to enforce it. Fairness is key.

5. Limit Personal Rights or Lifestyle Choices Prenups cannot dictate personal behavior, such as career choices, personal habits, or household responsibilities. They focus on legal and financial matters, not controlling day-to-day life.

Final Thoughts

A prenuptial agreement is not about mistrust—it’s about communication, planning, and protecting both partners. By understanding what can and cannot be included, couples can create an agreement that is fair, enforceable, and aligned with their goals.

Tip: Always work with an experienced attorney to ensure your prenup is legally sound, customized, and fully enforceable in your state. Click here to book a consultation today!