Even a well-constructed prenuptial agreement may not be legally binding in some cases, such as if the contents of the agreement exceed the boundaries of what a court wishes to enforce. This is especially true if the agreement contains language that affects individuals who are personally party to the agreement. In many cases, this involves the rights or privileges of children, or of employees of the couple.
Let’s say you and your spouse have a housekeeper you both care for greatly. In the prenuptial agreement, you and your spouse outlines who might get to retain the housekeeper’s services in the event of a divorce. While it is certainly wise to create an agreement with a wide scope, you cannot expect a court to uphold this agreement if it places an unfair burden on the housekeeper. The housekeeper is not your property, and he or she has the right to choose for him or herself which spouse he or she may wish to work for, if either.
Furthermore, when it comes to child custody and visitation rights, there are fairly strict parameters around how many of these issues can be dealt with in a prenuptial agreement. Ultimately, the court is concerned with the best interests of the child, and may only agree to uphold such provisions in an agreement if it agrees that they represent those best interests. It is also important to note that under no circumstances can a prenuptial agreement relieve a person of child support obligations.
If you and your soon-to-be spouse are working on a prenuptial agreement, be sure to take proper precautions to create something that not only protects you but is also enforceable. The guidance of an experienced attorney can help you examine your agreement and identify problems before the court has the chance to sink the entire agreement.
Source: Huffington Post, “Divorce Settlement Agreements May Not Be Legally Binding,” Brad Reid, July 07, 2017