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What not to include in a prenuptial agreement

Prenuptial agreements are becoming an increasingly common part of wedding planning for couples of all ages and income levels. They can help delineate what is separate property going into and during a marriage and help both spouses ensure a fair settlement should the marriage end.

A prenup is an insurance policy of sorts that can make divorce, if it happens, less bitter, drawn-out and expensive by settling matters up-front that are sometimes battled over for months in court.

There are some matters that a prenup cannot cover. Including them may cause all or part of the prenup to be invalidated in court. That's why it's essential for both partners to have their own Rhode Island family law attorney involved when they draft a prenup.

Issues regarding child support, custody and visitation cannot be included in a prenup. That's because it's considered the court's role to rule based on the children's best interests at the time they are presented to the court.

Some people seek to include lifestyle clauses in their prenups. They may want to stipulate that they get more property in the divorce if their spouse cheats or penalize them in a divorce if they've gained considerable weight.

There's nothing to legally stop you from including these prenup lifestyle clauses if you think you need to codify behavioral incentives for your spouse or stipulate that you will not visit your in-laws more than once a year. However, a judge likely won't uphold them.

Your attorney may suggest that you draw up a separate agreement for such things if you feel you need it, although that will have no value in court. Perhaps premarital counseling would be a better way to work through such issues.

Any clause in a prenup that can be viewed as an incentive for one or both spouses to divorce will likely be invalidated. It's ultimately up to a judge to determine whether a clause encourages divorce. Attorneys will let their clients know if an item they or their significant other want to include could be viewed that way and likely invalidated.

Source: FindLaw, "What Can and Cannot be Included in Prenuptial Agreements," accessed Jan. 24, 2018

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