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.

Divorce is never easy, but we can help. Learn More

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.

Divorce is never easy, but we can help. Learn More
How Long After a Divorce Can You Remarry in West Virgina?

References

Resources

Related articles

Visitation Rights During Separation

No parent possesses a legal right to deny the other parent visitation rights when they are informally separated, yet still married. Married parents share equal parental rights over their child during a separation, unless a family court issues a child custody order to the contrary.

DIY Prenup in California

A prenuptial agreement is an agreement that outlines the property rights of a couple who intend to marry in the event that they later separate. In some but not all cases, the terms of a prenuptial agreement prevail over state law requirements concerning the disposition of property of couples that separate or divorce. Couples often sign prenuptial agreements when one spouse is considerably wealthier than the other. In California, Sections 1610-1617 of the California Family Code govern prenuptial agreements. It is possible to draft a binding prenuptial agreement without the assistance of a lawyer.

Divorce & Adoption

When a couple decides to get divorced during an adoption process, it does not necessarily halt the adoption, although the impact of divorce will depend upon the type of adoption involved. Parents of children whose adoption is finalized before the divorce will have the same rights as biological parents with regard to custody, visitation and child support. Divorce proceedings occurring prior to the finalization of the adoption could hurt the progression of the adoption, depending on the individual circumstances. There is also an interplay between adoption subsidies and the receipt or payment of child support.

Get Divorced Online

Related articles

Contested Divorce in North Carolina

A contested divorce arises when spouses cannot agree on one or more terms of the divorce, such as child custody, ...

Marital Status: Difference Between Separated & Divorced

Most states recognize three ways to legally alter a marital relationship -- separation, divorce and annulment. Among ...

Children on Social Security & Child Support in New Jersey

When a divorce involves children, the court typically has to address the issue of child support. In a child support ...

How to Prepare a Partnership Agreement

A partnership is an agreement between two or more people to engage in a business venture. Each partner agrees to ...

Browse by category
Ready to Begin? GET STARTED