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Limitations in prenuptial agreements

Using a prenuptial agreement is often an excellent way to protect the interests of both spouses in a marriage, especially in Louisiana, where we are subject to community property division guidelines. However, it is important to understand that prenuptial agreements have some very clearly defined limitations that may impact the way you and your future spouse approach the process. If a prenuptial agreement contains faulty terms that do not hold up under the scrutiny of a court, then the entire agreement is vulnerable.

Two issues that commonly sink prenuptial agreements are child support and custody issues. It is completely understandable that couples may wish to include terms surrounding these issues, because they are frequently two of the most contentious issues in any divorce. However, courts see these issues as their territory to determine, not that of a child's parents.

Some parents may find this surprising, especially considering that courts usually prefer for parents to work together to create a parenting and custody plan when petitioning for divorce with children. This is true, but courts still retain the authority to approve or disapprove of a child custody plan if it has reason to believe it is not in the child's best interest, or possibly because the child him or herself does not prefer the terms set forth in the agreement.

Similarly, the courts reserve the right to determine child support, which is the right of the child, not a right of any parent to receive or dictate. While a court may possibly approve a parenting plan laid out in a prenuptial agreement, depending on the circumstances, it is very unlikely to honor any terms regarding child support at all.

Before you create the prenuptial agreement that fits your needs, it is important to understand the rights you should protect and the means you have to do so. With professional legal guidance as you craft your agreement, you can rest assured that your rights and preferences receive proper protection as you venture into a new season of life together.

Source: FindLaw, "What Can and Cannot be Included in Prenuptial Agreements," accessed Jan. 19, 2018

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