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What should we put in our prenuptial agreement?

Having a prenuptial agreement (or marriage contract) can be a wise decision for parties who are getting married and have individual assets or interests they would like to protect.

However, your prenuptial agreement must be properly drafted for it to be effective. Knowing what to include - and what not to include - can make the difference between an enforceable contract and an invalid document. So, what should you have in your prenup?

Separate property

As this article explains, premarital contracts can be crucial for parties entering a marriage with individual assets. Including them in your prenuptial agreement allows you to exclude them from division, assuming you keep them separate during your marriage. 

Therefore, you should include the following items:

  • Real estate ownership
  • Investments
  • Business holdings
  • Future inheritances
  • Family property
  • Debts

Marital expectations and responsibilities

You might also decide to establish expectations for certain responsibilities in your marriage contract. For instance, you can specify:

  • Whether (and how) you will divide living expenses
  • Who will make educational and moral decisions for the children
  • Pet ownership
  • Spousal support
  • Estate planning wishes

Clauses to avoid

In general, parties can include just about anything they want in an agreement, as long as it is not prohibited. Some of the clauses courts generally do not enforce include:

  • Child support
  • Child custody
  • Immoral clauses
  • Illegal clauses

Additionally, courts may not enforce a contract they deem unjust or terms that address marital and extramarital intimacy.

When you understand the capabilities of a domestic contract, you can use it to protect yourself and alleviate some of the complications that typically arise during a divorce.

Of course, people don't typically plan to divorce when they are planning to get married. However, having a guide in place in the event that it does happen can prove to be valuable. It can also ensure both parties are on the same page regarding critical topics like finances and expectations before committing to each other.

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