If you plan to have a prenuptial agreement, you may be trying to think of what you want to include in it. What’s almost more important to understand is what you can’t have in it. While you may be able to define who receives what in a divorce, certain parts of your marriage or relationship can’t be defined through the agreement.
Your attorney, for example, can’t put anything illegal in your prenuptial agreement for you and shouldn’t allow you to put it in, either. You can’t include decisions about child support or custody in your prenuptial agreement either, since this needs to be worked out in the best interest of your child at the time of a divorce. Too many things can change from the time a couple is married until the time of a divorce to allow child custody decisions to be made in advance.
You can’t waive your right to alimony in a prenuptial agreement, either. This is a provision that is commonly included in prenuptial agreements, but the truth is that the court simply won’t recognize the waiver. There are few states that do allow alimony waivers, so your attorney may need to double check on the rules for your state specifically and determine, especially if more than one state’s laws are involved, if your prenuptial agreement can have a waiver.
You also can’t include anything in your prenuptial agreement to encourage a divorce. Incentives can’t be offered; if a provision appears that it is encouraging a person to seek divorce, then it will most likely be thrown out and disregarded.
Source: FindLaw, “What Can and Cannot be Included in Prenuptial Agreements,” accessed Feb. 25, 2016