You know that prenups are to make the divorce process go more smoothly. You can use them to figure out contentious areas of your divorce — like how to divide your assets — in advance.
You also know that couples with kids fight in court about child custody as much as anything else. It’s often central to the entire case. As such, can you and your spouse just address custody rights in the prenup?
You cannot. While prenups are allowed to address most aspects of married life, child custody decisions are banned. The same is true for child support. Anything that is put in the agreement about these two areas won’t be upheld if you end up before the judge.
There are a lot of reasons why, one of which is that the prenup could then theoretically infringe on the child’s right to see both of his or her parents. The court has to make the decision with the best interests of the child in mind.
There is good news, though. If you and your spouse agree on child custody matters enough to consider putting it in the prenup, you’re clearly on the same page. Couples fight over custody simply because they can’t agree on what is fair. Since you both agree already, that mindset can help the case go smoothly as you work with the court.
It’s very important for you to know your legal rights when drafting a prenuptial agreement. Be sure you fully understand the law before signing anything, and never assume that you’re allowed to simply include any provisions that you want — even if your significant other agrees.
Source: FindLaw, “What Can and Cannot be Included in Prenuptial Agreements,” accessed Oct. 30, 2017