Prenuptial agreements, commonly called “prenups,” can be very useful in laying the groundwork for a marriage and, if it eventually becomes necessary, a divorce. Prenups help couples get on the same page regarding a variety of issues, most of them financial. Common issues addressed by prenups include the division of marital property and a spouse’s inheritance rights. But is there any issue that a prenup isn’t allowed to resolve? Let’s take a look at what can, and what can’t, go in a Utah prenup.
Who Needs a Prenup in Utah?
While prenups aren’t necessary for everyone, couples in certain financial situations can really benefit from the certainty and structure a prenup provides. Some such situations include:
- Large disparity in wealth between partners
- One partner is expecting a significant inheritance
- One or both partners have extensive or complex assets
- One or both partners has children from a previous relationship and wants to protect the children’s inheritance
- One of the partners owns a business or is starting out in a high-paying career
A prenuptial agreement is most commonly used to define certain financial outcomes, such as what property will be subject to division in a divorce and what will be considered separate or nonmarital property. However, a prenup can govern all types of issues, so long as they are not illegal or otherwise contrary to public policy.
Subjects that Cannot Be Decided in a Utah Prenuptial Agreement
The two most common issues that cannot be decided by a couple, even in an otherwise valid prenup, are child support and child custody. In a prenuptial agreement, the couple is free to bargain about their own rights and responsibilities to one another. But child support is not the right of either parent to receive; it is a duty owed to your child, even if that child does not yet exist. You cannot bargain away his or her right to be supported by a parent. Likewise, you cannot decide in a prenuptial agreement which parent will have custody of the children in a hypothetical future divorce. Child custody matters are to be decided based on the best interests of the children; children are not assets to be divided up in a prenuptial agreement.
Alimony, on the other hand, is fair game for a prenup. Be aware that while a prenup is an agreement, it is not a contract that requires consideration. So if you consent in a prenuptial agreement to give up any future right to alimony, your intended spouse doesn’t need to give you anything else in exchange for that promise. If you do decide to give up your right to alimony in a prenup, it is highly recommended that you get an experienced Utah family law attorney to review the agreement with you and explain your rights and obligations before you sign.
To be perfectly precise, you and your intended spouse can agree to just about anything you want in a prenup, including child support and child custody, which would seem to go against what we said above. The issue is that a court will not enforce those provisions if you should end up in court, so most attorneys do not include them in prenuptial agreements. But theoretically speaking, if you just wanted to have clarity on the issue between yourself and your spouse, you could. Just don’t expect the court to back you up later.
Contact an Experienced Utah Family Law Attorney
If you have questions about your family law matter, Ashley Wood Law, P.C. can help. Contact us online at contact@ashleywoodlaw.com or call (801) 459-3499 to schedule a consultation with an experienced Utah family law attorney.