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A prenuptial agreement can cover a lot, but not everything

Congratulations on your impending nuptials. You may be in the midst of the planning phase — perhaps choosing flowers, picking a venue and a photographer, tasting food and cakes, and sending out invitations. You have a lot to do, and this may seem like an awkward time to talk about preparing for the possibility of a divorce. But if you don’t do it now, you probably won’t do it.

If you and your future spouse agreed to enter into a prenuptial agreement, you should know that you can include several things in your agreement. You should also be aware that some issues cannot be covered in a prenup, for a variety of reasons.

Can you put (fill in the blank) into your prenup?

Most states frown upon the following provisions being in a prenuptial agreement and may refuse to uphold them in the event of a divorce:

  • Don’t include provisions regarding the amount of child support one of you will pay. A court would decide this issue based on a variety of factors relevant to the time at which you divorce, along with the custody arrangements.
  • Don’t include provisions regarding custody either. You never know what the future holds, and the court will want to make sure that any arrangements benefit the children at that time and serve their best interests.
  • You can’t force each other to do something illegal. 
  • Refrain from phrasing any of the document’s provisions in such a way that it encourages one or both of you to file for divorce. The court may throw it out.
  • You could waive your right to alimony, but why would you want to? The courts don’t like these provisions, especially because you don’t know what you may need to live in the future.
  • Prenuptial agreements are for deciding financial matters in advance of a divorce. Don’t include provisions regarding personal matters such as who (if either of you) will stay home with the children, who will take whose name, or who takes out the trash versus emptying the dishwasher, among other things.

Other than the above restrictions, you can address many financial issues you desire in your prenuptial agreement as long as they are not prohibited by Texas law. 

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