When crafting a pre-marital agreement, the natural inclination is to include as much as possible. While that is certainly the right mindset, especially if you want to head off any future disputes between you and your soon-to-be spouse before tying the knot, these documents aren’t designed to cover every possible circumstance. A perfect example is child custody arrangements.
Any well-intentioned parent wants to secure their future with their child and ensure their child’s needs are met. But including child custody provisions in a pre-marital agreement is not an option — even if you and your spouse agree on the details.
Why Can’t Child Custody Be Included in a Pre-Marital Agreement?
For starters, most states prohibit future child custody agreements in the form of a prenup because such matters are meant to be determined by the Court overseeing the case. Child custody is always determined by what’s in the child’s best interests at the time of the divorce. Simply put, a child’s welfare can change considerably over time — so what you and your soon-to-be spouse think will be in their best interests 10, 12, or 15 years from now can’t be predicted when you sign your pre-marital agreement. There’s also the reality that family circumstances and dynamics change over time, and a prenup can’t account for those changes.
Another major factor is that pre-marital agreements aren’t designed to cover such matters. Generally speaking, they are solely used to predetermine certain rights and duties for each spouse, specify what happens in the case of death or incapacity, improve communication, clearly define matters related to property distribution, and protect each spouse from the other’s debts.
Pre-marital agreements cover a lot of ground. But examples of what generally can’t be included in a pre-marital agreement include:
- Matters related to child support, child custody, or child visitation
- Language that limits a parent’s responsibility to a child
- Provisions that encourage divorce
- Anything illegal in the eyes of the law
- Unreasonable terms, such as those that excessively favor or penalize one spouse
It’s important to talk to your soon-to-be spouse, carefully consider all factors, and address any concerns before marrying. A pre-marital agreement is a good place to start those conversations. That said, child custody shouldn’t be part of those talks.
At Christman | Daniell Attorneys, we anchor our representation and legal advice on principles and philosophies that focus on the long-term best interests of children and families. Our mission is to provide clients with long-range perspectives and outstanding legal advice that help them rebuild their families after marital dissolution.
Where you fall in that conversation may only be clearly defined once we can sit down, dive into your unique situation, and determine the best course of action for everyone involved.
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Please consult an attorney for advice about your individual situation. The material on this website and in this or any blog article we publish are for informational purposes only and do not constitute legal advice. The attorneys at Christman | Daniell believe in tailoring legal advice and solutions to your own personal circumstances.
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