For many people, drawing up a prenuptial agreement (sometimes called a premarital agreement) seems antithetical to the idea of planning a wedding and long-term marriage. It lacks romance and, on the surface, may indicate a lack of trust between the people getting married. However, 40-50% of first marriages end in divorce in the U.S., and even more second marriages land in divorce court.

While no one expects that to happen, it can and does, and being prepared can make things smoother. But that’s not to say there aren’t some disadvantages to prenuptials as well. Read on for what you need to know.

The Advantages of Drawing Up a Prenuptial Agreement

There are many advantages to creating a prenuptial agreement, including:

  • Identifying what will be marital or individual property in the marriage. Marital property is what’s considered jointly owned, and if a divorce happens, marital property is usually divided between the couple. If one of the spouses has assets they’d like to keep separate, a prenuptial can specify those.
  • Determining how you’ll handle finances as a couple. You may decide to have joint accounts to share, or you may opt to have separate finances. The latter is often a good approach if one person brings significant debt to the marriage.
  • Setting the stage for alimony. If one spouse earns considerably more than the other, they may want to set a limit on the amount of alimony they’d be willing to pay at the time of divorce.
  • Protecting a spouse who plans to stay home with children. If one spouse leaves their career in order to care for children, a prenuptial can arrange for them to be fairly compensated for the loss of income in case of a divorce.
  • Protecting inheritances for children of a previous marriage. The prenuptial can specify that certain assets will go to those children when their parent dies.

The Disadvantages of Drawing Up a Prenuptial Agreement

While a prenuptial agreement has many advantages, it’s not a one-size-fits-all document.

There are some drawbacks to consider that may make a prenuptial less attractive for some couples.

  • As mentioned above, a prenuptial can create discord in a relationship, especially if one side is pushing aggressively to have one drawn up while the other is resisting. The latter may feel as if the relationship is already in trouble.
  • A prenuptial may heavily favor one spouse over the other. It’s highly recommended that each spouse have their own attorney for this type of agreement to help the agreement be more even. If it’s too heavily weighted in one spouse’s favor, a judge could throw it out in divorce court.
  • There’s no way to include everything, partly because it’s impossible to see into the future. Changes may occur after the marriage that affect the prenuptial in unexpected ways.
  • If one spouse agrees to pay alimony but limits the amount, the other spouse may find themselves having to adjust to a greatly decreased lifestyle after divorce.
  • As discussed below, not everything that could be important in a marriage can be included in a prenuptial agreement.
  • One spouse could lose the right to inherit assets from the other if the other dies first.

What Can and Cannot Be Included in a Prenuptial Agreement?

A prenuptial agreement can cover an extensive list of things.

  • Property division. It can clarify what should be considered marital property versus what remains individual property.
  • Management of assets and debts.
  • Whether or not one spouse will pay alimony to the other in the event of a divorce, including how much and for how long.
  • Any matter in which two people can create a legal contract.

However, there are many things that can’t be handled via a prenuptial agreement.

  • Illegal actions. These are not allowed to be included in prenuptial agreements.
  • Child support and/or child custody. Prenuptials cannot be used to determine either of these. The courts must be involved at the time of the divorce to determine the best interests of the child.
  • Personal details. A prenuptial is largely about finances, estates, assets, and debts. It can’t specify how children will be raised, whether one spouse will take the other spouse’s name, or how often each set of in-laws will be allowed to visit is not legally enforceable in a prenuptial.

What Could Make a Prenuptial Agreement Legally Unenforceable?

Conditions that could make a prenuptial legally unenforceable include:

  • The financial terms would cause one spouse to become eligible for public assistance.
  • One spouse signed the agreement involuntarily (under duress). However, the duress must be extreme to the point where the unwilling spouse felt threatened if they didn’t sign it.
  • One spouse didn’t disclose all assets and debts before drawing up the agreement, and the other spouse never waived the right to receive it.
  • The spouse who didn’t know about the other’s missing financial information would have had no way to know about it other than the prenuptial agreement.
  • The agreement wasn’t done in writing or lacks one spouse’s signature.

What Should I Do if I’m Interested in Drawing Up a Prenuptial Agreement?

Call the Law Offices of Robert Buchanan at 312-757-4833 for a no-obligation free consultation. Every prenuptial agreement is unique, and we’re here to help you determine if drawing one up is in your best interests. We’ll walk you through what it takes to protect your assets and what form a prenuptial agreement should take in your case.