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What Can and Cannot be Included in a Prenuptial Agreement?
Before hiring an attorney to draft a prenuptial agreement for me and my fiancee, I would like to know what can and cannot be included in a prenuptial agreement to avoid problems down the line and ensure that it is legally-enforceable.
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Answers (1)
It is important to draw a distinction between financial arrangements, which may be included in prenuptial agreements, and personal arrangements, which may not. Some of the issues that you can settle in a prenuptial agreement are as follows:
(1) How the assets will be disposed of or apportioned in the event of divorce and whether post-marital assets are kept separate;
(2) Who will inherit what (i.e. business interests, college fund account, summer home);
(3) How the needs of family members and children, such as educational expenses, will be provided for via trust accounts;
(4) Who will own the life insurance policy and how the proceeds will be allocated upon death;
(5) Who will be responsible for attorney's fees in case of dispute over the contractual terms;
(6) Whether to resort to arbitration or mediation, rather than litigation, in the event of dispute; and
(7) How much alimony will be paid or whether it is waived (unless waiver is prohibited under state law).
As a general rule, you may not decide child custody, child support or child visitation in a prenuptial agreement. This is because courts defer to the child's best interest, and it is the final arbitrer of that decision.
Talk to a Family Lawyer before making any decisions regarding premarital agreements.
References:
Posted by Yara Zakharia on 02 Jun 2010