You and your significant other are going to get married in the near future. The two of you have talked about it, and you’ve decided you want to use a prenuptial agreement. You don’t think that you’re ever going to get divorced, but you know that having a prenup can be helpful if you do.
You start by using the prenup to protect financial assets that you own or to define how your shared assets should be split up in the event of a divorce. But then you realize that you and your new spouse may decide to have children in the future, and you’d like to ensure that you get custody of them if a divorce does take place. Can you use your prenuptial agreement to define how custody should be divided and to protect your parental rights?
Custody must be addressed during the divorce
The short answer is no, you can’t use your prenup for custody issues. These are prohibited in prenuptial agreements and have to be addressed during the actual divorce.
For one thing, the courts don’t want parents to give up their parental rights. The children haven’t even been born yet, so neither of you should sign away your right to have a relationship with them in the future.
On top of that, courts are usually focused on the child’s best interests, and this often means the courts try to maintain relationships with both the mother and the father. A prenuptial agreement that gives full custody to either you or your spouse could be in conflict with the child’s best interests, so the court is not going to uphold the prenup—but will instead make a custody ruling that it feels is appropriate.
This isn’t to say that prenuptial agreements aren’t useful, but simply that you need to know exactly how they work and what legal steps to take when setting one up.
