You know that you want to use a prenuptial agreement with your future spouse. Maybe the two of you have very different financial situations or you are bringing a significant amount of wealth to the marriage. You hope that the two of you will not get divorced, but you want to make sure that you protect your assets just in case.
At the same time, you and your spouse have been talking about having children in the future. If you do get divorced, you would like to make sure that you get sole custody of those children. Could you put that type of provision into a prenuptial agreement and have your spouse sign it in advance?
Child custody decisions are prohibited
The short answer is no, you cannot discuss child custody rights in your prenuptial agreement. Nor can you discuss child support obligations.
Instead, the court will have to make these decisions, based on a wide variety of details, during the divorce case itself.
For instance, courts often focus on the child’s best interests, and it is common for them to determine that it would be best for the child to have a relationship with both parents. This is why joint custody is often used.
If you demanded sole custody in a prenup, then the court may decide that it would go against the child’s best interests. For this reason, prenuptial agreements should generally focus on financial decisions, and you will need to leave any child-related decisions to be determined if you do end up getting a divorce.
Drafting your prenup
It is very important to understand how to draft a prenup and what it can and cannot include. As you seek to protect your future against the uncertainty of divorce, it can help to work with an experienced family law attorney.
