What Prenuptial Agreements Cannot Include

Child Custody

Child custody battles can be the most emotionally grueling aspect of a divorce. One can understand why an engaged couple would attempt to preempt such an acrimonious dispute by attempting to lay out a plan for custody and visitation rights in case of divorce. Prenuptial agreements in Illinois cannot include this provision. Determination of child custody and visitation falls under the jurisdiction of the family court, not the parents, and the court is loath to waive that responsibility. Even in situations where divorcing couples seek an alternative dispute resolution to avoid litigation, a judge must approve a plan based on the conditions at the time of the divorce. There is no way to account for such issues so far ahead.

Forfeiture of Alimony

Paying alimony after a divorce is precisely what many people in marriages attempt to avoid in drafting a prenuptial agreement, but to no avail—forfeiture of alimony rights is chief among what prenuptial agreements cannot include in most states. Judges will heavily scrutinize any provisions pertaining to spousal support, particularly at either extreme. Prenups that attempt to get one spouse to forfeit any claims to alimony are likely to be deemed invalid. Conversely, a prenup that specifies disproportionately high alimony payments appears to incentivize divorce, which is another unacceptable provision.