Traditionally, a prenuptial agreement is simply used as a way to divide assets prior to a marriage or a divorce. The process of crafting a prenuptial agreement helps to define which assets belong to which people and to set financial expectations for the union in question.
But many people also decide that they want to have children together, and they may have even talked about this possibility before tying the knot. As with financial assets, you likely want to make sure that you get to retain a proper amount of time with your children after a potential divorce. As such, can you use your prenuptial agreement to determine how child custody will be split up in the event that your marriage doesn’t go the distance?
This would invalidate the prenup
The short answer is that you cannot do this in any state. Making this effort could even invalidate the prenuptial agreement and cause the court to throw it out entirely in the event that you sought to enforce its financial provisions.
Overall, you have to remain focused on finances when you are using a prenup. You can neither receive nor relinquish custody rights to children, whether those children have already been born or may be born in the future.
Why is the law set up this way?
Courts are obligated to focus on what is in a child’s best interests and they have to consider the rights of the child in the event of a child custody dispute. Generally, this means that courts want a child to be able to see both of his or her parents. Allowing the parents to make a different decision in advance would potentially violate this child’s rights, and it could mean that the outcome of a dispute is not actually in that child’s best interests. As such, custody solutions cannot be preemptively determined via a prenuptial agreement.
If you are drafting a prenuptial agreement, it’s quite important to understand all of your legal rights and options. Otherwise, the document you create could eventually be invalidated.