You weren’t planning to get married, but your partner got pregnant and so you decided to tie the knot. You’re a bit hesitant to do so, and you ask to use a prenuptial agreement to protect your assets. Your future spouse agrees that they would be fine with having such an arrangement in place.
But then you start thinking about this new child, and you realize that you may risk losing custody if you get divorced. Your solution is to address child custody in the prenup, along with your marital assets. Can you do so? Could you just have your spouse sign something before the marriage that says you will retain custody if that marriage ever ends?
Prenups cannot address custody
The short answer is, “No,” because prenuptial agreements are not supposed to address child custody and are only supposed to focus on financial assets. The goal is to divide your money and the other possessions that you own. Your future child is not a possession or an asset, and cannot be included in this agreement.
Generally speaking, courts want to decide on custody at the time that a couple gets divorced. They need to consider the best interests of the child and the living situation that that child is in at the time. There are a lot of different factors that they can consider, from health to finances to criminal records.
A prenuptial agreement would not address any of this, and it would also mean that someone else got to make the decision for the child. But what if the court thinks it is in the child’s best interests to spend time with both parents? As a result, a prenup that addresses custody will not stand in court.
Setting everything up properly
This doesn’t mean that a prenup is not valuable or that there aren’t ways to protect your custody rights. It just shows why it’s so important for you to understand exactly how these legal tools work and what options you have.