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Can a prenuptial agreement encourage divorce?

A prenuptial agreement is typically seen as a safety net in case of divorce. But what about a prenup that actually encourages a couple to split up?

This is pretty uncommon, but it does happen. When it does, most judges will not abide by the prenup. They do have some discretion that allows them to set the document aside if need be.

For instance, perhaps one person (Spouse A) is madly in love with the other (Spouse B) and just wants to get married, no matter what. Spouse A has a fair amount of wealth, and Spouse B has relatively little.

So, Spouse B writes up a prenup. It states that 75 percent of the total assets controlled by the couple, no matter when they were acquired, will go to Spouse B in the event of a divorce. Spouse A will get the remaining 25 percent.

So, Spouse B can come to the marriage with 25 percent of the couple's total wealth and keep 75 percent if they get divorced. This gives him or her a lot of incentive to get married and then ask for a divorce, merely as a way to exploit Spouse A's romantic feelings for financial gain. While Spouse A may understand the risk, he or she may not be thinking rationally due to being in love and may sign any documents just to get married.

It is important, when drafting a prenup, not to include anything that accidentally seems to promote divorce. Make sure you know exactly what steps to take and what types of things you can include.

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