Can you include custody terms in a prenuptial agreement?

On Behalf of | Dec 17, 2021 | Child Custody

When you and your spouse decided to get married, one of the things you remembered them adding into your prenuptial agreement was a short note about custody of any children you’d have together. The agreement was that you’d have joint custody, but now, looking at your situation, that’s not the custody schedule you want after your divorce.

The thing to realize is that you can’t put everything you want into a prenuptial agreement. There are certain items, like child custody, that are not able to be included.

Your prenuptial agreement’s section on custody is likely invalid

The point to remember when you start looking at custody is that a prenuptial agreement cannot include child custody or child support issues. This is because the court actually gets the final say in these two issues.

A court also has power to decide what’s in your child’s best interests. So, they won’t deny your child support or time with the other parent just because a prenuptial agreement says to. Instead, the court will determine what is in the best interests of your child and make that decisions final.

What should you do if your ex wants to stick with the agreement?

You don’t really need to do anything except for preparing your own case for the custody you want. If your ex is trying to make you abide by the prenuptial agreement, they should be informed that the custody or support issues you agreed to are not going to be upheld in court.

You can allow a judge to step in to help with your custody case

If they are not willing to negotiate to come up with a new custody agreement now, then you can take your case to the court and allow a judge to make the final decision. In most cases, people opt to resolve custody issues outside court before submitting their decision to the judge for approval. If that won’t work for you, then each of you can submit your own custody schedule ideas, and the judge can decide what will be best for your child in the long term.

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