What a Prenup Cannot Cover? - Custody, Support & Legal Limits

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Deciding to sign a prenuptial agreement is a proactive step toward a secure future. It’s a tool for transparency, often used by couples to define how assets like real estate, savings, and businesses are handled if the marriage ends. However, there is a common misconception that a prenup is an “anything goes” document.

In reality, family law courts prioritize public policy and the wellbeing of children over private contracts. If you include clauses that overstep legal boundaries, you risk having your entire agreement tossed out by a judge.

Whether you are using a professional service like Wenup to draft your agreement or consulting a solicitor, understanding the strict legal limits is essential to ensuring your document remains enforceable.

The Legal Boundaries of a Prenuptial Agreement

A prenup is primarily a financial tool. While it can cover everything from inheritance rights to debt protection, it cannot dictate every aspect of your shared life. Courts generally divide prenuptial provisions into two categories: enforceable (financial/property) and unenforceable (personal/illegal).

Why “Lifestyle Clauses” Often Fail?

Many people see celebrity news and think they can include “infidelity clauses” or requirements regarding weight gain and chores. In many jurisdictions, a topic often explored in broader law and legal discussions, these lifestyle clauses are viewed as trivial or contrary to public policy and are rarely upheld.

1. Child Custody and Visitation Rights

The most significant limitation of a prenuptial agreement involves children. You cannot legally “contract away” the rights of a child who may not even be born yet.

Best Interests of the Child: Courts use the “Best Interests” standard to determine custody. They will not honor a deal made years prior between parents if it doesn’t serve the child’s current needs.
Visitation Schedules: You cannot pre-determine who gets the kids on holidays or weekends within a prenup.
Education and Religion: Decisions regarding a child’s upbringing are handled at the time of separation, not in a marriage contract.

2. Child Support Payments

Just as you cannot dictate custody, you cannot waive child support. Child support is considered a right belonging to the child, not the parent.

Important Note: Any clause in prenuptial agreements that attempts to limit, cap, or waive child support is considered void. The court retains the absolute power to calculate support based on statutory guidelines and the parents’ actual income at the time of divorce.

3. Anything Illegal or Unconscionable

It may seem obvious, but a contract cannot require anyone to break the law. Furthermore, if a postnuptial agreement or prenup is deemed “unconscionable” meaning it is shockingly unfair or leaves one spouse destitute while the other remains wealthy a judge may refuse to enforce it.

Common “Red Flag” Clauses:

Encouraging Divorce: Provisions that offer a “financial bonus” for divorcing are generally prohibited.
Full Disclosure Failures: If you hide assets during the drafting process, the entire agreement can be invalidated.
Lack of Independent Counsel: For prenuptial agreements to be robust, both parties usually need their own legal representation to prove there was no coercion.

Prenuptial Agreement vs Postnuptial Agreement

If you missed the window to sign a contract before the wedding, you aren’t out of luck. A postnuptial agreement (or post nuptial agreement) serves a similar purpose but is signed after the marriage is official.

Feature	Prenuptial Agreement	Postnuptial Agreement
Timing	Before the wedding	After the wedding
Primary Goal	Protect pre-marital assets	Address new assets or changes in the relationship
Legal Weight	High (if signed well in advance)	High (but often more scrutinized)

While a relationship agreement or a cohabitation agreement might be used by unmarried couples, the prenuptial agreement remains the gold standard for protecting marital interests.

Understanding the Prenuptial Agreement Cost

The prenuptial agreement cost can vary significantly depending on the complexity of your assets and your location. While you might find a prenuptial agreement sample online for free, a DIY approach is risky. Professional fees typically cover:

Drafting: Creating a bespoke document that fits your specific needs.
Financial Disclosure: The formal process of listing all assets and debts.
Legal Review: Ensuring the document follows local laws to avoid it being overturned.

Investing in a professionally drafted document is often cheaper than the legal fees associated with a contested divorce where a “cheap” prenup was thrown out of court.

Key elements you can include:

To make the most of your agreement, focus on the “Big Three” of financial planning:

Separate Property: Defining what you brought into the marriage (like a business or family home) as yours alone.
Alimony/Spousal Support: You can often waive or limit spousal support (unlike child support), provided it doesn’t leave the other person on public assistance.
Debt Allocation: Ensuring you aren’t held responsible for your partner’s student loans or credit card debt incurred before or during the marriage.

Conclusion

A prenuptial agreement is a powerful tool for financial clarity, but it is not a magic wand that can bypass child welfare laws or public policy.

By focusing on asset protection and avoiding unenforceable clauses like child custody or support, you create a document that provides genuine peace of mind.

Whether you are looking into a prenuptial agreement template to get started or are ready to finalize a postnuptial agreement, the key is transparency and legal compliance.

FAQ: Common Questions About Prenups

Can a prenup cover who gets the pets?

Yes. In most jurisdictions, pets are legally considered property. You can include a clause regarding pet ownership in a prenuptial agreement sample or final draft.

Is a prenuptial agreement UK legally binding?

In the UK, prenups are not strictly “binding” in the same way as a commercial contract, but since the landmark Radmacher v Granatino case, courts will usually give them “decisive weight” if they are fair and both parties had legal advice.

What happens if we don’t have a prenup?

Without an agreement, your assets will be divided according to the “equitable distribution” or “community property” laws of your region, which may result in a 50/50 split of everything earned during the marriage.

Does a prenup protect my future inheritance?

Yes, this is one of the most common uses for prenuptial agreements. You can specify that any future inheritance remains separate property and is not subject to division.