A prenuptial agreement can be helpful for couples who are getting married because it allows them to address a potential divorce in advance. Someone may bring significant assets to the marriage, for example, that they want to protect. Examples include business ownership, savings, an inheritance or real estate.
But during a divorce, dividing assets is only one potential area of contention. The other main issue that often occurs is that the couple disagrees on splitting up child custody rights. To that end, could a couple include their child custody decisions in a prenuptial agreement so that this is also decided in advance?
Child custody decisions must be made during the divorce
The short answer is no, decisions about children cannot be made in a prenuptial agreement. This includes dividing child custody rights and determining child support.
Part of the issue is that many couples are drafting prenups before they are even married or have children. So it is unfair to those future children for the parents to make decisions about them in advance, which may not be in the child’s best interests at the time of divorce.
Moreover, the court often focuses on the child’s best interests when making these custody decisions. The court is trying to put the child first, not strictly adhere to the parents’ wishes. Even if a parent voluntarily gave up custody rights in a prenup, for example, the court may still determine that it would be in the child’s best interest to have a relationship with both parents. The prenuptial agreement would not stand.
Using prenups effectively
Prenups can be a very useful legal tool, but it is important to know what can and cannot be included. While drafting or enforcing these documents, be sure you know what legal options you have.
