What Can and Cannot Be Included in A Prenuptial Agreement?
You are not alone if you are thinking of getting a prenuptial agreement or prenup before getting married. According to a report published by the American Academy of Matrimonial Lawyers, there has been a significant rise in prenuptial agreements since 2016.
While divorce is not something one wants to think of when getting married – having a prenuptial agreement is a wise thing to do. Speak with a qualified divorce attorney in West Virginia about protecting your assets, interests, and legal rights if you are considering a prenup or postnup agreement.
Things that Can be Included in West Virginia Prenuptial Agreements
Distribution of Marital Property
West Virginia has its own separate laws governing the distinction between separate and marital property. Marital property or community property is usually distributed equitably. Any property that is acquired or earned during the course of the marriage is considered marital property. You can prevent having the court dictate the terms of distribution of your property by using a prenuptial agreement.
Debts of a Spouse
Creditors may come after the marital property without a prenuptial agreement. This is even when you did not have a say in your spouse taking on the debt. You can limit your debt liability exposure using a prenup.
Providing for Children from a Previous Marriage
You may want to have a prenuptial agreement in place if you have children from a previous relationship. There have been instances where the subsequent spouse has failed in being fair to children from previous relationships. Prenuptial agreements can ensure that your children inherit the property you intended for them to have.
Protecting Family Property
Family businesses, family heirlooms, and future inheritance can be specified in a prenuptial agreement. You can make sure they don’t end up being contested during a divorce. Prenups allow the property to be kept in the birth family if that is your intent.
Prenuptial agreements play a major role in ensuring that the estate plan you create is fulfilled as you want it to be.
Property Distribution During a Divorce
You can bypass most of West Virginia’s laws regarding the distribution of property during a divorce by agreeing between yourselves about who gets what through a prenuptial agreement. In fact, you can even decide which spouse pays alimony and by how much through a prenup in West Virginia. You should consult with a family law attorney to clarify this issue when creating your prenuptial agreement.
Things that Cannot be Included in Prenuptial Agreements
West Virginia laws restrict the things that cannot be included in a prenuptial agreement. These are a few of them:
West Virginia Law prohibits soon-to-be-married couples from including anything illegal in the provisions of a prenuptial agreement. In fact, you may place the entire prenup document at risk of being set aside if you do this.
Child Custody or Child Support
West Virginia doesn’t allow child custody issues or child support matters to be included in a prenuptial agreement. This is because the court needs to keep the best interests of the child at the forefront when deciding child custody and support matters.
There are several factors that come into play when determining child support. The court will never uphold a provision dealing with child support, child custody, or visitation. In effect, the court retains the power to decide the best interests of the child.
Waiving Off Rights to Alimony
This is one of the most common provisions that get struck down by courts in WV. While you can decide which spouse needs to pay alimony during a divorce, no spouse can entirely give up their alimony rights. You should talk to a golden and committed divorce attorney to understand your legal rights.
Financial Incentives for Divorce
The court will scrutinize your prenuptial agreement looking for anything that offers a financial incentive to divorce your partner. In case any provision is thought to be encouraging divorce, the prenuptial agreement will be set aside by the court.
For instance, any provision detailing the manner in which property is divided can be seen as encouraging divorce. This makes it important to work with an attorney that can word the document in a manner that doesn’t go against the interests of society.
Provisions of a Personal Nature
Unfortunately, prenups cannot be used for including personal preferences. You cannot state who does the chores, names to use for children, where to spend the holidays, or the relationship to maintain with certain relatives. You and your spouse can always draft another document that specifies such things. This way the court will not have the power to intervene.
Legal Help is Here from Highly-Rated Divorce Attorneys in West Virginia
The law office of Hardy Pence has experienced family law attorneys that can ensure your prenuptial agreements and any other documents are carefully worded and your best interests are fully protected. By hiring us, you get more than a century’s worth of trusted legal advocacy on your side. To schedule your free consultation, call us at (304) 345-7250 or fill out this online contact form.