Terms That Could Undermine Your Prenuptial Agreement

There are some terms you can’t or should not include in a prenuptial agreement. Some are unenforceable, but depending upon other terms of the agreement, the inclusion of such terms may destroy the validity of any of the agreement! Terms you should avoid in your prenuptial agreement fall into the categories of illegal; void as against the public policy of the state; and those that are determined to be promotive of divorce.
Terms or agreements to act in any illegal enterprise have never been enforceable in a court of law. So, it is no different if you slip one in your premarital agreement, it will be unenforceable.
Terms that are void as against public policy include any attempt to define what would happen if children are born or adopted during marriage by both parties. No state will honor any predetermined scheme as the Court acts as a guardian of children’s rights. Thus, the Court will determine disputes regarding parentage, custody, visitation, and support based on the facts at the time of the dispute and state law.
Some states, not including California, prohibit the waiver of a claim of spousal support or alimony. California allows for spousal support waivers but adds a few requirements that nearly guarantee each party must be separately represented by an attorney for it to be enforceable later.
Provisions that promote divorce include almost any agreement to impose financial or other penalties on a party for conduct. This includes provisions for a financial penalty if the divorce is due to marital infidelity or a financial penalty for drug use. This also applies to financial rewards for a divorce, such as a dowry or a ketubah. Additionally, provisions that purport to impose any obligation regarding religious practices, particularly for the children.
Because of the potential pitfalls in selecting the terms for a prenuptial agreement, it is best to have an experienced family law attorney to guide you through the process, especially if you want your agreement to be valid and enforceable. Contact The Reape-Rickett Law Firm at (888) 846-6166 or visit www.DivorceDigest.com to meet with an experienced attorney.