Provisions That May Be Unenforceable in Prenuptial Agreements

Four Items That May Not Be Upheld in Divorce Court

As beneficial as prenuptial (or premarital) agreements can be for couples that get them, it is important to be aware that “prenups” cannot cover everything. There are certain items that, if included, can be struck from the agreement. When crafting your prenuptial agreement, you need to be sure to avoid including these four items.

#1: Child Custody

Colorado courts are not bound by provisions or agreements that include terms regarding custodial responsibilities over your children. This does not mean provisions about custody will for certain be stricken automatically. However, child custody orders issued by judges need to serve the best interests of the children – and it is very difficult to predetermine what will be best for the children in a prenup versus at a divorce hearing years after the prenup is signed.

Keep in mind, couples getting a divorce can try to negotiate a custody and visitation arrangement before or during their divorce, and those agreements must be in the best interests of their child or children.

#2: Child Support

Terms or provisions in a prenup that adversely affect a child’s right to support are unenforceable. The court has to determine a parent’s child support obligation based on the existing needs of the child, and those needs likely cannot be known ahead of time when a prenuptial agreement is created. In addition, each parent’s ability to pay child support may change over time from when the prenuptial agreement is made.

#3: Domestic Violence

Terms or provisions in a prenup that restrict remedies or relief available to victims of domestic violence will not be upheld. If you are a victim of domestic abuse, Law Office of Greg Quimby, P.C. may be able to advise you in seeking a protection order.

#4: Modification of the Grounds for a Separation or Dissolution Action

Terms or provisions in a prenup that attempt to modify the “grounds” for a divorce or separation are unenforceable. Typically, the grounds required for a divorce in Colorado are 1) a valid marriage and 2) an allegation that the marriage is irretrievably broken.

#5: Illegal Actions

While this might sound straightforward, any terms that go against public policy are unenforceable. This would include provisions regarding illegal actions either party might agree to undertake.

#6: Penalties Against the Filer

Terms or provisions in a prenup that penalize a party for initiating legal proceedings leading to divorce are also unenforceable.

Working with an Attorney

Because prenuptial agreements can be complex, it’s important to work with an attorney who can help you understand what can and cannot be included as they work with you to create your agreement. At Law Office of Greg Quimby, P.C., we’re prepared to help you create a prenuptial agreement that will stand up in court in the event of divorce.


To ask questions about prenuptial agreements or to get started, call us at (719) 212-4227 or visit us online.