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No, your prenuptial agreement can’t affect your child’s custody

You have a prenuptial agreement, and it talks about what would happen if you and your spouse divorce but have children together. Of course, at the time it was created, you didn’t think much about it. You didn’t think you’d want to have children, but now that you do have them, it worries you that your prenuptial agreement states how their lives will be handled in the case of a divorce.

Since you don’t agree with some of the terms of the prenuptial agreement, your main question is if it’s legal. While some of the prenuptial agreement may be legal, the likelihood is that anything related to your child isn’t. Why? Prenuptial agreements aren’t allowed to include decisions regarding custody or child support.

Why can’t prenuptial agreements include custody or child support decisions?

The reasoning is sound if you think about it carefully. If you decided on custody arrangements before a child was born, you might find that the arrangements you set up simply won’t work for your new lifestyle. Perhaps one parent works more than expected or the child prefers to live with one parent over the other. These are things that can only be considered once a child is born and during the course of a divorce.

Child support isn’t included for similar reasons. If you include support now, there’s no way to know what your situation will be in the future. If your spouse says they’ll pay $200 a month but has no job in the future, clearly, that will be impossible. Similarly, if they say they’ll pay $200 a month but end up making millions, you’d want them to pay a fairer portion of their income.

A court will not uphold provisions in prenuptial agreements that deal with visitation, child custody or child support. The basic reasoning is that these are issues of public policy, which means that the court has the final decision in what is best for the child. The court will not allow for any outside decision to take away a child’s right to financial support from one parent or their right to see or develop a relationship with a parent.

In the case that you have an agreement that discusses custody, visitation or support terms, you should discuss this with your attorney. There may be a way to have the prenuptial agreement voided, so that you can be reassured that you won’t have to worry.

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