What Your Prenuptial Agreement Can’t Do

Prenuptial agreements are one of the most powerful tools to enable marriages available under Michigan family law. They’re powerful, flexible contracts that allow a couple to predetermine the answers to a wide variety of questions that might come up later in the marriage — or during a divorce. But there are limits to a prenuptial agreements power, and we’re going to look at them in detail today.

Force/Hide an Illegal Act
The fastest way to get a court to nullify all or part of your prenuptial agreement is to include any clause in it that details any illegal activity. You’d think this was a rare occurrence, but it happens shockingly often, mostly due to unforeseen changes in circumstances. For example, a clause necessitating one partner to move out of the state should the two divorce might become invalid because that partner may be on parole when the divorce is completed and thus it would be illegal for them to move.

Mandate Custody/Visitation Terms or Child Support
If you attempt to use the prenuptial agreement to mandate the rights or duties of either parent in regard to any children should you divorce, it will be ignored. The court’s mandate during a divorce is to do everything possible to ensure the best interest of the children, and that very much includes setting aside any part of your prenup that tries to predetermine who gets custody, how the child will be raised, or so on. This includes any clause that would affect future child support payments.

Enable Domestic Violence
Put simply, if a clause in your prenup would allow one partner to commit acts of domestic violence on the other — or prevent the victim from seeking a remedy — that clause is unenforceable. No one can sign away their right against bodily harm or psychological abuse.

Waive the Right to Alimony
This is the most commonly struck-down clause in Michigan divorce courts. You cannot decide ahead of time that alimony payments aren’t on the table — the courts view such an act as grotesquely unfair given how dramatically circumstances can change over the course of even a short marriage.

Incentivize Divorce
Prenuptial agreements generally must be scrutinized by separate lawyers representing each betrothed. That’s because a startling number of them are set up in such a way that one partner or the other is set up to benefit from the act of divorcing the other. That’s called ‘incentivizing divorce,’ and it’s a HUGE no-no to family law courts. You can limit the damage a divorce can do in a number of ways, but you cannot ever set up your prenup in a way that makes divorce financially favorable to remaining married.

Punish Divorce
At the same time, a prenup also cannot penalize either party for seeking a divorce. Divorce must remain a viable, on-the-table option for either partner at any time, and while a prenup can do a lot to discourage a divorce, it must leave the option open for the truly desperate.

If you’re struggling to figure out how to get your prenuptial agreement to do what you want it to, Gucciardo Family Law can help — call today!