I've never been married or divorced but i've heard some truly terrible horror stories about the insain legal fees and the practice of wearing the other party down by having deeper pockets with even the winner not ending up particularly well off while the loser goes bankrupt so I think one important thing to put in a prenup provided it would actually hold up in court would be to limit the legal fees either party can pay on divorce lawyers/leeches.
Infact I prefer the Swedish system to the UKs or worse Americans you know up front you would each get half and you know you won't end up with 100s of thousands in legal fees and years of your time and health lost.
Most Helpful Girl
You can literally put anything into prenup, no one checks it.
But prenups are meant to supplement the law, they cannot overwrite it. There are some things you can't decide in a prenup. For example who gets custody of your children..
Furthermore, presumably prenups were often written decades before they're used. You might have had a great lawyer and every single clause might have been valid at the time, but then the world changed around you and your prenup didn't.
People say it's something you should do once. Well actually if you want it to be valid you have to constantly update your prenup
So unless you have significant wealth going into the marriage, really a prenup is a waste of time and money. It's scam that so many of guys buy into. Prenups are useful for the rich and famous, for the rest of you the law provides you with rules. 50/50 on everything1
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Most Helpful Guy
Generally - except in France and Louisiana - existing case law (precedent) governs, with the law as written on the books secondary, and the contract between two parties tertiary.
So, imagine we have an employment contract. Our contract states that you have to give me a million dollars if you work for a rival company within three years of our employment. The law on the books states clearly that such a clause is not valid. However, existing case law provides some exceptions, providing that such a clause can be valid, but only if the former employee cannot help but bring with them proprietary or confidential information which would provide a substantial competitive advantage to the competitor. Later decisions carved some exceptions out, to ensure that a creative individual is not prohibited from practicing their trade despite the possibility of an advantage.
The non-compete clause in our contract is invalid and "would get thrown out". However, our lawyers might argue about whether you have confidential proprietary information which would be advantageous to your new employer, and if so, whether enforcing such a clause would unfairly restrict your ability to practice your trade.
If you were a barista at my coffeeshop, my lawyer might argue that you know all of our trade-secret recipes, the perfect ratios for our mexican mocha and caramel cappuccino, and further, that barista doesn't qualify as a creative position. Your lawyer might argue that those "recipes" are effectively public knowledge, as any customer can observe the number of pumps of syrup in their beverage, and further, that even if they aren't public, for the court to enforce a million dollar penalty on a $30k/year job would unfairly limit your right to practice your trade.
A pre-nuptial agreement is exactly like that: it is a contract, which may have clauses that are valid, clauses that are invalid, and clauses which may have been valid when it was written, but have been invalidated by later court cases.