When you and your spouse write a prenuptial agreement, you are making plans for what should happen in the event that you get divorced. For instance, maybe you are a business owner and you want to ensure that you keep the entire business if your marriage ends. You could construct a prenup where your spouse waives their right to any portion of your business, giving you greater security moving forward.
But what if the two of you have children together? A divorce would also mean that you have to split up child custody rights. Could you use your prenuptial agreement to address this as well?
Child custody cannot be included
The short answer is no: Child custody is one of the things that cannot be included in a prenuptial agreement. You cannot waive your right to have custody of your child, nor can you use the prenup to ensure that you get full custody.
There are two main reasons for this. The first is that the court is going to make a child custody ruling during the divorce, based on numerous factors, and the court will always prioritize the child’s best interests. Parents do not have a right to make this decision for their child in advance.
Additionally, courts often believe that it is in a child’s best interests to have a relationship with both parents, unless there is a very specific reason not to, such as evidence of abuse or other safety issues. So the court would not want someone to sign away their custody rights, even if they were doing so voluntarily, as that could harm the child.
Navigating a divorce
Prenuptial agreements can certainly help in a divorce, but it is important to know how to draft them, what they can include and what steps to take as you go through the divorce process itself.
