A prenuptial agreement can be used to make certain decisions in advance. If a couple gets married and then later decides to divorce, they turn to the prenup to determine how things should go. For instance, a prenup can be used to protect business assets or financial assets to ensure that they don’t have to be divided during the divorce.
But what about child custody rights? Say that someone puts into their prenuptial agreement that they will maintain full custody of their children after a divorce, both physically and legally. The other parent agrees that they will give up all custody rights and won’t be involved with the children. Is it possible to make these decisions in advance as well?
Child-related decisions must wait
In short, no—a prenuptial agreement cannot address child custody rights, child support obligations, or other matters related to the child and their relationship to their parents. These decisions must wait for the actual divorce case itself.
For one thing, the court is going to make custody decisions by focusing on the child’s best interests. The judge is not obligated to follow any predetermined terms if they believe something else would better serve the child.
Additionally, children themselves have a right to a relationship with their parents. A prenuptial agreement that signs those rights away would be making a decision for the child without their input—and perhaps even before they were born. This type of agreement is not enforceable, and the court will not follow those instructions during the divorce.
Divorce and prenuptial agreements have a somewhat complex relationship, so it’s important for couples to understand exactly what rights they have and what steps to take.
