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What can and cannot be included in prenuptial agreements

On Behalf of | Dec 17, 2021 | Blog, Prenuptial Agreements

Under the best circumstances, a prenup streamlines the trauma that comes with separating from a spouse. No one wants to consider a future marriage disintegrating, but smart couples in Texas understand the practicality of a prenuptial agreement. A prenup is only effective if each side understands what they can and cannot include.

What you can include

State law typically dictates what can go in a prenup. Here’s some of what the law lets you include:

  • Protection against spousal debt: When a couple gets a divorce, it doesn’t necessarily stop creditors from going after marital property. Avoid this by determining debt liability.
  • Provisions for offspring from past relationships: Use the prenup to ensure that children from previous relationships inherit what you want them to have.
  • Keeping family property: To protect anything from your birth family such as real estate, art or jewelry that should stay with you, specify it in the agreement.
  • Property distribution: The state has laws governing who gets what in a divorce. By agreeing on that yourselves, you ensure the court doesn’t make decisions for you.

What you cannot include

Some things do not belong in a prenup. Here are a few things you cannot use in such a document:

  • Anything illegal: Prenups cannot have criminal elements. Doing so leads to all sorts of problems you do not want.
  • Child support or custody: The court has the last word in determining child custody and support. A judge will not entertain a prenup containing details about what happens to the children.
  • Provisions promoting divorce: Financial incentives to divorce are forbidden. The court will set aside any material that even hints at encouraging this.
  • Personal details: Any information that does not deal with asset distribution damages the document’s integrity. That means no inclusion about where children will spend weekends or decisions on vacationing. A general rule is no addressing non-financial or non-property issues period.

Not knowing what you can include and exclude may create more problems. A well-developed prenup can get the entire family through what’s often a volatile situation.