What a Prenup Cannot Do

There are a few things that you can’t do with a prenuptial agreement, and there are things that you can legally do but that are unwise. Generally speaking, you can’t use a prenup to do anything criminal or in violation of public policy (a legal term that refers to general societal good), and you shouldn’t use one to govern matters that don’t involve money or property in some way.

A few specific limits of prenups bear special mention. If you include any of the following in your prenuptial agreement, you or your partner might be in for a nasty surprise when parts of your prenup aren’t honored during divorce proceedings or in the event of the death of one spouse. It’s important to know that a prenup is not the final word but instead acts as a guideline for how a judge will allocate resources or make other rulings in a divorce or probate proceeding.

Every U.S. state prohibits prenuptial agreements that establish or limit either parent’s custody or visitation rights, or their obligation to pay child support, in the event of divorce. Any provision that attempts to do so will be void. In matters of custody and support, the child’s right to be supported and to have a relationship with both parents is paramount and can’t be bargained away in a prenuptial agreement or otherwise. If the parents divorce, the court will decide matters of custody and support based on consultations with social services officials, a guardian ad litem for the child, and the parents.

A note to pet owners: no such prohibition applies to pets, which are considered property under the law. Pet-owning couples should consider including a provision on custody and ownership of pets in a prenuptial agreement, as this can be a particularly emotional and difficult issue to agree upon in a divorce.

Most U.S. states, as well as the Uniform Premarital Agreement Act (UPAA), expressly permit prenuptial agreements to control alimony (as long as the agreement itself, and the circumstances in which it is drafted and executed, satisfy certain standards that often vary by state). However, a few states prohibit agreements that would limit a spouse’s right to spousal support in the event of divorce.

The UPAA and many states also provide that a court may override a limitation or waiver of spousal support if enforcement would cause one of the spouses to become eligible for welfare or similar public assistance. A few states require an alimony waiver to be fair not only at the time of execution but also at the time enforcement is sought, allowing consideration of changed circumstances. For these reasons, it’s important to consult an experienced lawyer when including alimony under the scope of your prenup.

Because of specific rules under the Employee Retirement Income Security Act of 1974 (ERISA), a prenup cannot limit a spouse from receiving certain retirement benefits. ERISA preempts state law and requires payment of benefits to a nonparticipating spouse. There is an exception to this act: if a spouse waives his or her rights in a specifically prescribed manner, the benefits can go to someone else. The key word here is “spouse” because a prenuptial agreement is signed before the wedding, neither partner is legally a spouse yet, so a prenup can’t override the rules of ERISA.

As a rule, be very careful wherever your prenuptial agreement touches on any matter involving a government agency or program, as that area is likely to be governed by a statute with specific procedures, forms, and rules. In general, if your prenup involves rights, property, or debts controlled or administered by a third party, don’t assume that your prenup will be sufficient by itself to satisfy the applicable requirements.

Though it’s not strictly illegal to do so, avoid including in your prenuptial agreement any personal and household matters that don’t involve property. Such matters might include (but are by no means limited to) the following:

Though you should discuss, negotiate, and agree upon all the above subjects as a couple before you marry—and perhaps even put them in writing—they shouldn’t be part of a formal prenuptial agreement. A prenup should cover only matters that might have to be decided by a judge in the event of divorce or the death of one spouse.

If a prenuptial agreement creates an obvious financial incentive for one spouse to divorce, a court is likely to find it invalid as a violation of public policy.