What Can and Cannot Be Included in A Prenuptial Agreement?
Prenuptial agreements can be helpful to both parties as they work to reduce potential grounds of future marital disputes while solidifying the terms of their relationship and marriage. Based on this, just one wrong clause or loosely worded term in a prenup can render it ineffective or put you at a disadvantage.
It’s best to work with an experienced family law attorney to prevent costly errors in this document that have the potential to impact your long-term future.
Things that Can be Included in Prenuptial Agreements
In Kentucky, prenuptial agreements are also called premarital and antenuptial agreements. There are certain things that can be included as part of a prenuptial agreement in the Commonwealth.
These rules are set in place to prevent unsuspecting spouses from being taken advantage of. A judge may throw the prenuptial agreement out if these requirements are not met.
These are a few items that can be made part of the prenuptial agreement:
Distribution of marital property
You can make distinctions between marital and separate property. In Kentucky, marital property is distributed equitably. The court will divide the marital property while leaving separate property as individually owned. You can use the prenuptial agreement to prevent the state from deciding how the marital estate will be divided.
Protection against debt
Creditors may come after the marital property even if only one spouse is the debtholder. You can use a prenuptial agreement to limit your debt liability and avoid going bankrupt during a divorce.
Provisions regarding existing children
You may want your children from previous relationships to inherit some part of your property. You can make such provisions through a prenup.
Protecting your family property
You can specify clear instructions in the prenuptial agreement to keep a family business, family heirloom, other pieces of property, or future inheritance in the birth family.
Protections for Estate Plans
While you need to create and secure living trusts and wills to ensure an estate plan, you can use a prenuptial agreement to make sure your wishes are carried out as you see fit.
Things that cannot be a Part of the Prenuptial Agreement
Kentucky laws restrict the things that cannot be included in a prenuptial agreement. These are a few matters to be aware of:
Provisions regarding illegal objects and services
You cannot include anything illegal in the prenup. You may place the entire prenuptial document at risk by doing so.
Child support or custody
Prenuptial agreements cannot include child custody and child support issues. The court will make the final call on these issues based on the best interests of the child. Issues regarding child support, custody, and visitation are matters of public policy. The court will not deny the child the opportunity to have a healthy relationship with a fit parent or the right to financial support.
Provisions that encourage divorce
Prenuptial agreements were not allowed in Kentucky until 1990 when the Kentucky Supreme Court joined several other states in letting spouses determine their own financial rights. Judges will scrutinize the details of the prenup to look for anything that seems to be a financial incentive for a divorce.
Details about personal matters
You cannot include personal preferences in the prenuptial agreement. For instance, whose name to use, who does what chores, where to spend the holidays, details about child-rearing, or the kind of relationship to have with relatives. Prenuptial agreements can only be used for addressing financial issues.
The Value of a Prenuptial Agreement
Prenuptial agreements can protect you in the event of a divorce, but beyond that, they also set clear boundaries and expectations at the start of a marriage. In this case, where we’re talking about family assets, a prenuptial agreement can set clear expectations about the role that each spouse will play in the other’s family.
For example, imagine an individual who owns a large share of a family business. By including that family business in the prenuptial agreement, they are protecting it from division should the marriage end. However, they are also showing their spouse-to-be that they don’t need to invest work, time, or money into the business. The benefits and responsibilities of the assets will be kept separate from the marriage.
Of course, the main benefit of a prenuptial agreement, in this case, is that it can protect your finances should your marriage end. Family heirlooms and assets predate your marriage, and losing a portion of them to the division of assets would be financially devastating to you.
Securing Your Family Legacy
Your family’s legacy, whether one or ten generations old, is precious. One bad divorce could be enough to upend it. This is why many families with sizable businesses or expensive assets require their children to have prenuptial agreements in order to access their share of the family wealth.
Consider the complications that could arise if you did not include your share of a family business in a prenuptial agreement. After your spouse asks for a divorce, they get an aggressive attorney with a track record of getting separate assets categorized as marital assets.
They successfully argue that your spouse invested their time and money into your family business, which made it a marital asset. You lose half of your share of the family business to your ex-spouse. Now, you have to buy them out and put yourself at a serious financial disadvantage.
In some situations, it’s not even about the financial value of an asset. Family heirlooms may have substantial nostalgic value to you. A vengeful ex-partner could easily capitalize on that by trying to claim their share of the heirlooms as part of the divorce. You may think that this wouldn’t happen, but you would be surprised how far some people will go to spite an ex-spouse.
This is all avoidable. With a prenuptial agreement, you can give yourself and your family members peace of mind.
Common Issues Addressed in a Prenuptial Agreement
Prenuptial agreements are not just for the rich. Many couples decide on signing prenuptial agreements before getting married for its several advantages. These are a few commonly included items in prenuptial agreements:
- Retirement benefits.
- Separate businesses.
- Management of household expenses and bills.
- Income, deductions, and claims for filing tax returns.
- Arrangements regarding investments made in certain projects and purchases, like a business or a house.
- Managing joint bank accounts.
- Savings contributions.
- Management of credit card payments and spending.
- Arrangements to put a spouse through school.
- Property distribution, including life insurance.
- Agreement to use arbitration or mediation to settle potential disagreements.
Overcoming Objections
For many, the hardest part of a prenuptial agreement is telling their spouse-to-be that they want one. If your partner objects to a prenuptial agreement, it doesn’t mean that they’re after your assets or your family’s money. In many cases, people worry that a prenuptial agreement is essentially preparing for divorce. The person who did not want the prenup may feel like their partner already has one foot out the door.
You may be able to overcome these objections by explaining that the prenuptial agreement is an important part of preserving your family’s legacy. Note that you don’t anticipate a divorce, but that it’s similar to buying car insurance—you don’t plan on being in a car accident, but should one happen, you’d be happy to have the insurance.
You can also ease their mind by suggesting that they have an attorney look it over and ensure that it is fair to them. A prenuptial agreement should not be one-sided; both parties should benefit from it.
Get a Compassionate Family Law Attorney on Your Side Today
The seasoned family law attorneys at the law firm of John H. Ruby & Associates have extensive experience and knowledge in the area of prenuptial agreements. Our attorneys can draw up a document that reflects your and your spouse’s wishes while being enforceable and effective in a court of law.
To request your free, no-obligation consultation, call us at (502) 895-2626 or complete this online form.