When making a prenuptial agreement, you’re not saying that you want to get divorced or even that it’s likely. You’re just planning in advance so that, if it happens, there are certain protections in place. You may want to protect assets that you own and ensure that you won’t have to split them with your ex, for example.
But if the two of you have children or are planning to have children in the future, you may also consider putting child custody provisions into this prenup. You want to ensure that you have custody of your children if you ever get divorced. This seems like a logical decision, but are you allowed to do so?
Child custody and support cannot be addressed
The answer is no, you cannot put a clause relating to either child custody or child support decisions into your prenuptial agreement.
The reason for this is that the court typically has the final say. They will determine how much is owed in child support based on your financial situation at the time. They will also consider the child’s best interests when determining how custody should be divided.
Putting these details into a prenup means that the child’s best interests may not be honored. For instance, the court may determine that it’s best for both parents to see the child, so a prenuptial agreement saying that one parent gets sole custody and the other parent gets nothing would be in direct conflict. Parents cannot make these decisions in advance for their children—who may not even be born yet—as it could be a violation of those children’s rights, along with their ex’s own parental rights.
Prenuptial agreements can be very useful, but you can see why it’s so important to know exactly how they work and what can be included. Be sure you know what legal steps to take at this time.