What Cannot Be Included in Prenuptial Agreements

A man pointing at where a woman should sign a document. The document reads "Prenuptial Agreement" at the top

Terms Rendered Unenforceable If Included

While prenuptial agreements certainly offer great benefits to those who get them prior to their marriage, there are certain terms that, if included, are unenforceable. A prenuptial agreement cannot cover everything one desires them to. Be sure to avoid including anything related to these items when creating your prenuptial agreement.

Child Custody & Support

Anything related to your future children is something that typically cannot be included in your prenuptial agreement. Specifically, child custody and child support-related items are off-limits when creating prenuptial agreements. The primary reason for this is simple: it is almost impossible to predict the needs of a child or what will be best for your child before they are born. In addition, life circumstances change, and modifications may be needed to make changes to orders for custody and support.

While you cannot include child support or child custody in a prenuptial agreement, you and your spouse can work to negotiate these terms in your settlement agreement, or the court can determine these issues for you if no agreement can be reached.

Unfair Financial Terms

Illinois is an equitable division state when it comes to property division in a divorce, meaning it’s reasonable to expect that dividing property might not mean an equal split. However, that does not mean that property division terms can be so lopsided in favor of one spouse over the other. If the court finds that the property division and financial terms of your prenuptial agreement are unfair to one spouse, then those terms could be rendered unenforceable.

Illegal Actions

This might sound overly simplistic to state, but any terms that go against federal, state, or local laws will not be enforced and will be struck from the prenuptial agreement.

Terms Promoting Divorce

Any terms in a prenuptial agreement that promote divorce, either through financial benefit or the action of any party, cannot be included and will not be enforced. For example, one spouse could not include terms indicating that the other spouse would receive a greater number of assets if they file for divorce.

Working with a Prenuptial Agreement Attorney

Part of ensuring that the terms of your prenuptial agreement will be upheld in court is working with an attorney who can help you avoid unenforceable terms or language when creating your document. At Law Offices of Jonathan Merel, P.C., we have helped many clients create prenuptial agreements that both meet their needs and can be upheld in court.


To learn more about prenuptial agreements or to schedule a consultation, call us at (312) 487-2795 or visit us online.

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