Although the number of prenups signed by marrying spouses has gone up, it isn’t because the legality surrounding them has changed. Rather, it is a sign of the times, as assets and wealth become more valuable, leading some to preemptively try to preserve and protect them. Millennials, and some of the older generations getting married, want to be certain that, if this new venture called “marriage” doesn’t work out, they have something they know for certain they can fall back on/into.
That being said, it would be inaccurate to believe that the prenup is a “law of the land” document that rules that outcome of the divorce – in all facets of marriage and divorce. Firstly, the prenuptial agreement cannot set a “minimum standard for sexual intercourse”. The court has deemed this improper and too invasive, and therefore invalid, and subsequently not enforceable. It also cannot dictate things like how/where the family spends the holidays (which side of the family), nor can it dictate family matters, such as laborious house chores.
Another limitation of the agreement is child welfare issues. These include child support, visitation schedule, and custody of the child/children. These are matters that must be decided by the court, as they are the protectors of “the child’s best interests”. If this rule was not in place, the results could be disastrous, and the child may end up in the care of someone seriously unfit to raise the child on their own.
Lastly, if the court deems the agreements in the prenup overtly unfair, they will not enforce the agreement. The court will not enforce, for instance, an agreement that includes no alimony for a spouse who has given up their career to raise children, at the urging of their partner, and had been married for an extended period of time.