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Discussing prenuptial agreements, Pt. 2

In our last post, we talked about having the "prenup discussion," and how this can help soon-to-be-married couples even if they ultimately decide not to sign a prenup. Today, let's talk about what you can and can't include in a prenuptial agreement.

First, let's talk about the positives -- the provisions and topics that you are allowed to discuss and include in your prenuptial agreement. These are:

  • Protect your estate plan and/or family business. You can make provisions that ensure your estate plan is enforced the way you wish it, and to protect your family business from your spouse in case of a divorce.
  • Define property distribution. The prenup can establish rules regarding how you and your spouse will divide property in case of a divorce.
  • Determine which property is "marital" and which is "separate." Marital property means that both spouses have a stake in the asset, while separate property belongs to one spouse.

Now let's talk about the topics that are off limits in a prenuptial agreement. These are:

  • Child custody and child support.
  • Spousal support (or alimony). More specifically, you can't waive your right to spousal support.
  • Anything illegal. This should be obvious, but it needs to be mentioned.
  • Any clause that would encourage a divorce.

Prenups are complex contracts, and if you are drafting one or preparing to sign one, you should consult with an attorney as soon as possible. In our next post, we will talk about how prenuptial agreements can be legally challenged.

Source: FindLaw, "What Can and Cannot be Included in Prenuptial Agreements," Accessed Sept. 15, 2016

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