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Leave custody and child support out of prenuptial agreements

Many couples, especially those with significant assets, choose to create prenuptial agreements that outline their individual property and detail certain guidelines and expectations about financial behavior and ownership. These agreements are tremendously useful even to couples who never divorce, allowing each spouse to protect his or her property from the other's debts.

If divorce does occur, having these issues sorted out ahead of time can simplify the divorce process and ultimately benefit both parties as they leave the marriage and begin building new lives for themselves. However, poorly-constructed prenuptial agreements, or those that contain terms or provisions unsupported by the law, may create just as many complications as they propose to solve. This is particularly true if prenuptial agreements involve child custody or child support, which is not allowed by the courts.

If you suspect that your prenuptial agreement is not supported by the law, or if you simply are not sure of validity of the document, it is wise to carefully examine it. Look for weaknesses to could undermine your ability to keep your rights and priorities secure and anticipate any complications before they prove problematic and costly.

Child custody issues

Generally speaking, courts do not allow prenuptial agreements to apply to child custody, for a number of reasons. This is in order to protect the best interests of the child. A prenuptial agreement likely cannot anticipate the needs of the child before the divorce, and courts usually require custody agreements to prioritize the child's best interests over the preferences or needs of the parents.

More often, this restriction is to protect one spouse from giving up parental rights under pressure from the other spouse. If, for instance, a woman marries a man with significant assets who presents her with a prenuptial agreement that states she will receive a significant payout from divorce but must agree to give him full custody of a future child, this does not reflect the rights of both parents.

Likewise, the spouse with significant assets may attempt to use the prenuptial agreement to buy themselves out of parental responsibility, offering the other parent some significant sum to assume all parental responsibility. This not only places undue pressure on the other parent, it deprives the child of relationship with the other parent.

Courts do prefer for parents to present a co-authored custody agreement for approval, but does not allow these terms to exist in a prenuptial agreement.

Child support issues

Child support is not a matter that parents have the authority to determine, although a court may consider the preferences or needs of parents in its decision.

Courts examine the needs of the child and the resources of the parents to determine how to award child support. It is important to understand that child support is the right of the child, not of the custodial parent.

If you suspect that your prenuptial agreement contains provisions that the law does not support, you should address these as soon as you can. Otherwise, these provisions may place the entire agreement in jeopardy, greatly complicating the divorce process as a whole.

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