Prenuptial agreements, commonly called “prenups,” can be very useful in laying the groundwork for a marriage and, if it eventually becomes necessary, a divorce. Prenups help couples get on the same page regarding a variety of issues, most of them financial. Common issues addressed by prenups include the division of marital property and a spouse's inheritance rights. But is there any issue that a prenup isn’t allowed to resolve? Let’s take a look at what can, and what can’t, go in a Utah prenup.
While prenups aren’t necessary for everyone, couples in certain financial situations can really benefit from the certainty and structure a prenup provides. Some such situations include:
A prenuptial agreement is most commonly used to define certain financial outcomes, such as what property will be subject to division in a divorce and what will be considered separate or nonmarital property. However, a prenup can govern all types of issues, so long as they are not illegal or otherwise contrary to public policy.
The two most common issues that cannot be decided by a couple, even in an otherwise valid prenup, are child support and child custody. The reason for this is simple: in a prenuptial agreement, the couple is free to bargain about their own rights and responsibilities to one another. If you and your intended spouse want to put in your prenup that one of you will bring the other coffee and breakfast in bed at precisely 6:30 every morning, you are at liberty to do that. (A judge may give you an odd look when you show up in court to enforce that provision, but it is perfectly legitimate).
As long as the prenup was made based on full disclosure of your respective financial positions (or a waiver of disclosure), was made freely and voluntarily, and was a signed writing, it is generally enforceable in court—as to your rights.
But child support is not the right of either parent to receive; it is a duty owed to your child, even if that child does not yet exist. You cannot bargain away his or her right to be supported by a parent. Likewise, you cannot decide in a prenuptial agreement which parent will have custody of the children in a hypothetical future divorce. Child custody matters are to be decided based on the best interests of the children; children are not assets to be divided up in a prenuptial agreement.
Alimony, on the other hand, is fair game for a prenup. Be aware that while a prenup is an agreement, it is not a contract that requires consideration (something of value that one party gives to another in exchange for making a contract). So if you consent in a prenuptial agreement to give up any future right to alimony, your intended spouse doesn't need to give you anything else in exchange for that promise. If you do decide to give up your right to alimony in a prenup, it is highly recommended that you get an experienced Utah family law attorney to review the agreement with you and explain your rights and obligations with you before you sign.
To be perfectly precise, you and your intended spouse can agree to just about anything you want in a prenup, including child support and child custody, which would seem to go against what we said a couple of paragraphs back. The issue is that a court will not enforce those provisions if you should end up in court, so most attorneys do not include them in prenuptial agreements. But theoretically speaking, if you just wanted to have clarity on the issue between yourself and your spouse, you could. Just don't expect the court to back you up later.
If you have further questions about what can't go in a Utah prenup (or what can), we invite you to contact Barton Wood to schedule a consultation.