How to Make a Prenup Legal

    Prenuptial agreements are a method for marrying couples to decide how to handle the issues of alimony and property in the event that either oneof them dies during the marriage or in the event that they unfortunately become divorced. With the divorce rate so high in the United States, it is not surprising that more and more people are turning to prenuptial agreements before they marry. Many, if not, most prenuptial agreementswill be challenged during a divorce. 

However, a properly drafted agreement, which is signed by the parties in a timely fashion prior to the marriage, will be upheld. The appropriate time for signing a prenuptial agreement is never the day of the wedding or the day before the wedding. Doing so creates an impression that one of the parties was inappropriately pressured to sign the document. 

The gold standard is that the document should be negotiated and signed prior to the setting of the date of the marriage. In reality, this gold standard is seldom accomplished. In any event, the best time to negotiate or sign a prenuptial agreement is weeks, if not months, prior to the wedding. In essence, do not break the news about the prenuptial agreement at the last minute.

All state courts in the United States maintain jurisdiction over the best interests of the children. Consequently, a soon-to-be married couple cannot contract away this jurisdiction and power in a prenuptial agreement. Child support issues and the issues of custody and visitation contained in a prenuptial agreement does not prevent the court from taking evidence on these issues and coming to a different decision during the divorce. 

There is some usefulness to incorporating language into a prenuptial agreement concerning the custody and contact schedules involving the children to be born during the marriage. It is useful in that the parties can argue that the agreement concerning contact and custody of the children were reached by the parties when they were thinking about the positive qualities each other would bring to parenting, instead of the focusing on each one's negative traits (that can happen during a divorce). 

Under these circumstances such language may be instructive and useful to the court, even if it is not binding on the court. Couples may attempt to regulate their behaviors during the marriage through a prenuptial agreement. The content of these clauses depend upon what the couples believe are important in terms of themselves and their relationship.  

The enforceability of such clauses vary from state to state. A clause stating that: "We will have sex not less than four times per week, but not more than seven," may not be legal or enforceable in some states. In those states, the concern is that such language transforms the prenuptial for sex has become a contract for sex. And we all know that such contracts are against the law.

Marriage is about commitment.  It is not unreasonable for parties to attempt to define the boundaries of that commitment (in terms of rights and obligations) in the event that a divorce occurs. Prenuptialagreements are a way for people to attempt to accomplish this goal.

Charles Jamieson is a family law attorney who has represented clients in divorce cases in more than 20 states. He has practiced law for 26 years and is located in West Palm Beach, Fla.