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What you cannot waive in prenuptial or postnuptial agreements:

Prenups and postnups are agreements that are made between spouses for the purpose of defining the terms of the marriage and rights of the couple. Find out what rights CANNOT be waived in these agreements:

Prenups and postnups are agreements that are made between spouses for the purpose of defining the terms of the marriage and/or to designate or govern certain rights and conditions that would apply if the parties divorce.

There are rights that cannot be waived in either of these agreements.

1. Child support & Timesharing

Some specific provisions regarding children of the marriage are enforceable. This includes provisions relating to religious upbringing, education, and other matters of importance to the parties. However, prenups and postnups may not conclusively determine which parent will receive the most time-sharing or waive.

The duty to pay or receive child support on behalf of minor children cannot be waived by agreement. In fact, any rights related to minor children cannot be waived. This includes timesharing.

Nor can these agreements override the requirements of the child support guidelines. Florida Statute §61.079 clearly states that the “right of a child to support may not be adversely affected by a premarital agreement.”

2. Temporary support:

A clause in a prenup/postnup agreement whereby a spouse waives or limits entitlement to temporary support during the pendency of a divorce is void as against public policy  These provisions are not currently valid in Florida and in other States. Don’t exclude this from your agreements though. We recommend leaving still be included with language acknowledging that the parties understand that it’s currently enforceable, but in the event that it becomes valid in Florida, then the parties are obligated to abide by it.

3. Certain attorney’s fees

However, the parties’ prenuptial agreement may limit exposure for attorneys’ fees for litigating a contractual issue not related to support if the contractual issue is well defined in the agreement.

A provision in a premarital agreement that, in the event of a termination of the marriage by divorce, one or both parties waive attorneys’ fees is generally unenforceable as against public policy because each party has a duty to support the other during the marriage, which cannot be contracted away 

Conclusion

The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

Have more questions? Let us know by sending an email to: questions@legallotus.com and we will do our best to develop content to provide you with direction and insight!

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The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

Have more questions? Let us know by sending an email to: questions@legallotus.com and we will do our best to develop content to provide you with direction and insight!

For more information:
Check out and subscribe to our YouTube Channel
Follow us on Instagram
Like us on Facebook
Visit our website
Shop our Legal Templates

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1 comment

  1. Very informative post! The article correctly includes a list of things that cannot be waived in prenuptial or postnuptial agreements. However, there are certain grey areas like alimony waiver. It depends on the facts and actions during marriage and is at the discretion of the judge. It is also critical to check the state laws, as each state is governed by its own set of laws.

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