Can Child Custody Be Addressed in a Prenuptial?

By Kevin Owen

Many couples, weary of the pitfalls of a messy divorce, choose to resolve any post-marriage disputes by entering into a prenuptial agreement before getting married. Since child custody and child support may be a highly contentious issue during a divorce, it might be tempting to address these issues in a prenuptial agreement. However, no state in the country allows prenuptial agreements to control issues related to the future children of the marriage.

Prenuptial Agreements

A prenuptial agreement is a written contract signed by a couple prior to marriage, which controls the outcome of any future dispute that may arise in the event of a divorce. Most prenuptial agreements address whether and how much alimony should be paid, the division of property and debts, and impose confidentiality between spouses after a divorce occurs. These agreements are often entered into when one partner has greater wealth, earning potential or expected inheritance than the other, or when one or both partners were previously divorced.

Best Interests of the Children

Prenuptial agreements are not applicable in determining child custody, visitation rights and child support payments for future children of the relationship. These issues are determined by a judge who, after reviewing evidence and testimony, issues a decision based on the best interests of the children. Since the court considers the specific facts of the case and needs of the children at the time the divorce is pending, any pre-decided contractual terms are not relevant because the couple could not forecast the family circumstances and parental income prior to marriage.

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Contract Invalidation

In most circumstances, general contract law governs the interpretation and application of a prenuptial agreement. If the issues of child custody and child support are the primary terms of the contract, the court may invalidate the entire prenuptial agreement.

Children from Other Relationships

A couple is permitted to include terms addressing inheritance and property rights of children from a prior relationship in a prenuptial agreement. For example, if a man has children from a previous marriage and expects a large inheritance from a family member, a prenuptial agreement may address these property rights for his children.

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