What Can and Cannot Be Included in a Pre/Postnuptial Agreement?

A pre/postnuptial agreement is basically a contract you and your partner sign before/after getting married that decides what happens to your money and assets if things don’t work out. This can include how assets and debts can be divided in case of divorce, and terms for alimony but not matters like child support or anything illegal. 

There’s actually a lot at stake financially going into a marriage. More people are walking into marriages with their own assets, their own debts, and sometimes kids from previous relationships, and a pre/postnuptial agreement is just a way of being clear about all of that upfront. 

If you’re trying to figure out whether one makes sense for you, getting legal assistance for pre and post-nuptial agreements early in the process is really the smartest move you can make. 

What Can You Put in a Pre/Postnuptial Agreement?

The main thing pre/postnuptial agreements are used for is deciding what counts as your separate property versus what becomes shared marital property once you’re married. 

Anything you owned before the marriage, such as a house, a business, savings, or investments, you can specify in the pre/postnuptial agreement that it stays yours if things end. The same goes for any inheritance you might receive during the marriage or gifts that come to you specifically.

You can also use a pre/postnuptial agreement to protect yourself from your partner’s debts. Without one, creditors can sometimes come after marital assets even if the debt belongs to only one of you. A pre/postnuptial agreement can draw a clear line there.

If you have kids from a previous relationship and you want to make sure certain assets go to them rather than your new spouse, a pre/postnuptial agreement can handle that, too. Same with family heirlooms or a family business you want to keep in your family, no matter what.

Spousal support, or alimony, is another thing that can go in a pre/postnuptial agreement in most states, either agreeing on an amount upfront or waiving it entirely, though some states limit this, so you should check the rules where you live.

Other things couples commonly include are how household bills get managed, how joint bank accounts work, who’s responsible for what debts, and how retirement accounts, community property, or investments get treated if the marriage ends. 

What You Cannot Put in a Pre/Postnuptial Agreement

Child custody and child support are completely off the table. Courts will never enforce those provisions because child support calculations and custody decisions always have to be based on what’s best for the child at the time of the divorce, not what two people decided years earlier before the child was even born. The court gets the final say on anything involving kids, full stop.

You also can’t include anything illegal, obviously. And you can’t put in clauses that are designed to encourage divorce, for instance, a provision that gives one person a big financial reward for filing first. Courts see through that immediately and won’t uphold it.

Personal lifestyle stuff doesn’t belong in a pre/postnuptial agreement either. Who does the dishes, what religion to raise the kids in, what surname to use, expectations around intimacy, none of that is enforceable. Pre/postnuptial agreements are for financial matters only, and judges tend to dismiss agreements that try to control personal behavior.

And if the agreement is wildly one-sided, such as one person gets everything and the other gets nothing, then a court can throw the whole thing out for being unconscionable, especially if one person signed it without fully understanding what they were agreeing to. 

A Few Things Worth Knowing

Both people need to fully disclose their financial situation for a pre/postnuptial agreement to hold up. If someone hides assets or debts, the whole agreement can be invalidated later.

It’s also a bad idea to sign one a few days before the wedding. Courts look at that as a sign someone was pressured into it. Starting the process months in advance is the way to go.

And both people should have their own separate lawyers. It protects everyone and makes the agreement much harder to challenge later. 

Key Takeaways

• A pre/postnuptial agreement decides what happens to your money, property, and debts if the marriage ends. It’s a financial agreement, not a personal one.
• You can use it to protect assets you had before marriage, guard against a partner’s debts, and make arrangements for kids from previous relationships.
• Child custody and child support can never be decided in a pre/postnuptial agreement, and courts always handle those based on the child’s best interests at the time.
• Personal lifestyle clauses aren’t enforceable because pre/postnuptial agreements are strictly for financial matters.
• Each spouse is required to fully disclose their finances before the pre/postnuptial agreement is signed. It also helps if they have separate lawyers.
• Couples are usually advised to sign well before the wedding for the agreement to actually hold up in court.