Can You Include Provisions for Child Custody & Support in Your Prenuptial Agreement?

When drafting a prenuptial agreement, many couples want to cover all their bases to ensure a smooth transition in case of a divorce. Many couples ask: Can you include provisions for child custody and support in your prenup? It’s a fair question, especially for those planning on having children or who already have children. The quick answer is no, but here is more on why and what you can do to protect your family’s future.

Why Child Custody and Support Provisions Aren’t Allowed in Prenups

A prenuptial agreement, or prenup, is a legal contract between two people about to get married. Its primary purpose is to outline how assets, debts, and spousal support will be handled in the event of a divorce. However, the law operates very differently when it comes to child custody and child support.

Family courts are guided by the principle of the child’s best interest, meaning that decisions regarding custody, support, and other matters related to children must be based on the circumstances at the time of separation or divorce—not what was agreed upon before the marriage even started. Why? Because there is simply no way of predicting what your family situation will look like in the future. Trying to lock down decisions about your child’s future before they are even born or before their needs are fully understood would not be fair to them.

Therefore, prenuptial agreements that attempt to dictate child custody arrangements, support amounts, schooling decisions, or even religious upbringing will not be enforceable. In other words, those clauses will be void if the prenuptial agreement needs to be enforced in court. The court will always decide on child custody and support matters based on the current circumstances and the child’s best interests.

What Happens If These Provisions Are in My Prenup?

If you have a prenuptial agreement that contains provisions related to child custody or child support, you may wonder if this makes your entire prenup invalid. The good news is that most prenuptial agreements include what is known as a severability clause.

A severability clause ensures that if one provision in the agreement is unenforceable, such as child custody or support provisions, the rest of the agreement remains valid. This is one reason why working with an experienced family law attorney is so important when drafting a prenuptial agreement. They can help ensure that your agreement is structured to protect your interests while avoiding provisions that will not be upheld in court.

What Can You Include in a Prenup?

Although child custody and support cannot be addressed in a prenuptial agreement, there are still many important issues you can cover, including:

• How property will be divided in the event of a divorce.
• Whether spousal support (alimony) will be paid, and if so, how much.
• How debts acquired before and during the marriage will be managed.
• How certain assets, like a family business, will be handled.

Next Steps: Consulting with JWB Family Law 

If you’re considering a prenuptial agreement or already have one in place, it’s always a good idea to consult with a knowledgeable family law attorney. At JWB Family Law, we’re here to help you with all your prenuptial agreement needs. Whether you’re preparing for marriage and want to draft a prenup or you’re reviewing an existing agreement, our experienced team is ready to assist you. We offer a FREE 30-minute consultation, so don’t hesitate to contact us with any questions. Call (619) 234-6123 or visit our website at https://jwbfamilylaw.com/ to schedule your consultation.

For more insights on this topic, you can also watch our informative video here.