Prenuptial and postnuptial agreements have become increasingly common tools for couples looking to protect their financial interests and clarify expectations before or during marriage. These legal documents can address property division, spousal support, and debt allocation should the marriage end in divorce or death.
However, many couples hold misconceptions about the scope and power of these agreements. While prenuptial and postnuptial agreements offer significant benefits, they’re not all-encompassing contracts that can govern every aspect of married life. Courts impose strict limitations on what these agreements can and cannot include, and understanding these boundaries is crucial for creating an enforceable document.
If you’re considering a prenuptial agreement before marriage or a postnuptial agreement during your union, knowing what provisions are legally prohibited could save you time, money, and frustration down the road. Some restrictions exist to protect children’s welfare, while others preserve individual freedoms and prevent agreements that undermine the institution of marriage itself.
Matters Concerning Children
1. Child Custody
One of the most significant limitations of prenuptial and postnuptial agreements involves child custody arrangements. These agreements cannot predetermine who will have custody of children in the event of divorce or separation. Courts consistently refuse to enforce custody provisions written into marital agreements, regardless of how thoughtfully crafted they may be.
The reason for this restriction is straightforward: child custody decisions must always be made based on the child’s best interests at the time of the custody determination, not years in advance when circumstances were entirely different. A child’s needs, the parents’ living situations, work schedules, and countless other factors can change dramatically over time. What might have seemed like a reasonable custody arrangement when drafting an agreement could become completely inappropriate by the time divorce proceedings begin.
Courts evaluate custody cases using current information about the child’s relationships with each parent, their educational needs, health considerations, and overall well-being. This evaluation cannot be replaced by predetermined agreements made when the child may not have even been born yet.
2. Child Support
Similarly, prenuptial and postnuptial agreements cannot establish fixed child support amounts or waive child support obligations entirely. Child support is considered a right that belongs to the child, not the parents, which means parents cannot bargain it away through private agreements.
Child support calculations depend on current income levels, the child’s specific needs, healthcare costs, educational expenses, and other factors that fluctuate over time. State guidelines provide formulas for determining appropriate support amounts, and these calculations must be based on present circumstances rather than outdated projections from a marital agreement.
Even if parents agree on support amounts during divorce proceedings, courts retain the authority to modify these arrangements as circumstances change. A prenuptial agreement that attempts to cap support at an unreasonably low amount or eliminate it will simply be disregarded.
Clauses That Encourage Divorce
3. Financial Penalties for Staying Married
Prenuptial and postnuptial agreements cannot include provisions that financially incentivize divorce or separation. For example, an agreement cannot state that one spouse will receive a larger settlement if they initiate divorce proceedings, or that staying married beyond a certain number of years will result in financial penalties.
These restrictions exist because marriage is considered a legally and socially beneficial institution that should be preserved when possible. Agreements that make divorce more attractive than remaining married work against public policy and the fundamental purpose of marriage itself.
Courts may not only refuse to enforce such clauses but potentially invalidate the entire agreement if they determine that encouraging divorce was a primary purpose of the document. This risk makes it particularly important to avoid any language that could be interpreted as promoting marital dissolution.
Personal and Lifestyle Choices
4. Daily Responsibilities and Chores
Despite what popular culture might suggest, prenuptial and postnuptial agreements cannot dictate personal conduct or daily responsibilities within the marriage. Agreements cannot require one spouse to perform specific household chores, maintain certain personal habits, or follow particular daily routines.
For example, an agreement cannot mandate that one spouse must cook dinner every night, handle all laundry duties, or maintain a specific appearance. These types of personal conduct clauses are considered unenforceable because they attempt to control individual behavior in ways that exceed the proper scope of contractual agreements.
Courts recognize that marriages involve personal relationships that cannot be reduced to contractual obligations. While spouses may make informal agreements about household responsibilities, these arrangements must remain voluntary and cannot be legally enforced through prenuptial or postnuptial agreements.
5. Religious Beliefs and Hobbies
Personal freedoms regarding religious beliefs, political opinions, and recreational activities cannot be restricted through marital agreements. An agreement cannot require one spouse to practice a particular religion, attend specific religious services, or abandon their faith traditions.
Similarly, these agreements cannot prohibit spouses from pursuing particular hobbies, friendships, or interests (assuming they are legal activities). The freedom to make personal choices about belief systems and recreational activities is considered fundamental to individual liberty and cannot be contracted away through marital agreements.
Such restrictions would not only be unenforceable but could also indicate that the agreement was signed under duress or coercion, potentially invalidating the entire document.
Agreements Involving Illegal Activities
6. Illegal or Unconscionable Terms
Any prenuptial or postnuptial agreement that includes provisions requiring, encouraging, or facilitating illegal activities will be deemed unenforceable. Courts will not enforce agreements that ask either party to engage in drug use, theft, fraud, or any other criminal behavior.
Including illegal clauses doesn’t just make those specific provisions unenforceable—it can invalidate the entire agreement. Courts may conclude that an agreement containing illegal terms was created in bad faith or demonstrates a fundamental misunderstanding of legal requirements.
Even seemingly minor illegal provisions can have major consequences for the agreement’s overall enforceability, making it crucial to ensure that every clause complies with applicable laws.
7. Unfair or Oppressive Conditions
Courts also refuse to enforce agreements that are grossly unfair or unconscionable, meaning they heavily favor one spouse at the expense of the other. While prenuptial and postnuptial agreements don’t need to split everything equally, they cannot be so one-sided that they shock the conscience of the court.
For example, an agreement that leaves one spouse with virtually no assets or income while the other retains everything might be deemed unconscionable, particularly if both spouses contributed significantly to the marriage’s financial success.
The legal standard for fairness requires that both parties enter the agreement voluntarily, with full knowledge of their rights and the other party’s financial situation. Agreements negotiated under pressure or without adequate legal representation are more likely to be deemed unconscionable.
Creating Enforceable Agreements
Understanding what prenuptial and postnuptial agreements cannot include is just as important as knowing what they can cover. These agreements remain powerful tools for protecting assets, clarifying financial expectations, and reducing conflict during divorce proceedings, but only when they comply with legal requirements and limitations.
Successful agreements focus on financial matters like property division, spousal support, and debt allocation while avoiding attempts to control personal behavior or circumvent laws designed to protect the interests of children. They also ensure fairness to both parties and comply with requirements for full disclosure and voluntary consent.
Before creating either type of agreement, consult with an experienced family law attorney. Professional legal guidance helps ensure that your agreement will be enforceable when needed and won’t be subject to successful challenges in court. The family law attorneys at C. Alvarez Law have the experience you need to create comprehensive, legally sound agreements that protect your interests while complying with all applicable legal requirements. Contact us today to discuss your needs and explore your options.
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