There can be value in creating a prenup, because it can help a divorce go smoothly. For instance, many couples get into disputes over how to divide marital assets. But a prenup can be used to do that in advance, while they’re still on relatively good terms. It can also be used to protect certain assets and keep them out of property division entirely.
But the other main area of conflict in a divorce revolves around child custody decisions. Should you consider making these in your prenup as well?
Child custody issues cannot be included
The short answer is that no, you should not try to use a prenup to make child custody decisions because these are not allowed in prenuptial agreements. Instead, you have to go through the divorce case, and the court will either agree to your proposed parenting plan and custody schedule or issue a court order if you and your spouse can’t come to an agreement on your own.
But ultimately, the court has to approve these decisions and has authority over them, focusing on the best interests of the child. For that reason, you’re not allowed to make the decisions in advance, and any clauses relating to child custody will not be upheld.
After all, even if one parent voluntarily waived their custody rights prior to the divorce, the court may still decide that it is in the child’s best interest to have a relationship with both parents and will want to use joint custody.
Navigating a divorce
This helps to illustrate some of the complexities of a divorce case and how a prenup can and cannot help. Be sure you know what legal steps to take while going through this process.