Do you remember the era when Brad Pitt and Angelina Jolie were affectionately known as “Brangelina”? The stories about their tumultuous divorce were impossible to avoid unless you’ve been living under a rock for the past few years. Reportedly, Brangelina had an ironclad prenuptial agreement that granted Angelina primary custody of the couple’s six children if Brad was unfaithful. However, the reality is that courts frown upon both child custody and child support arrangements in prenuptial agreements.
Why can’t I add child custody or child support in my prenup?
Child custody disputes require courts to determine a time-sharing and decision-making arrangement that is in the child’s best interests. Virtually all courts do not recognize or enforce clauses regarding physical custodial arrangements, visitation rights, or child support awards within a prenup.
In fact, any terms regarding child custody or child support could invalidate your prenup altogether. Similarly, child support is considered a right of the child to receive–it is not a parent’s right. Public policy dictates that parents provide sufficient financial support for their minor children. The bottom line? A parent cannot waive a child’s right to receive child support through a prenuptial agreement.
The New York Exception
In the state of New York, there is a narrow exception to the general rule regarding prenups and child support and custody. If the child is alive when both parties sign the prenup, they may include terms about child support and custody. However, any agreement about child support must specify the amount according to the state’s guidelines. If the agreed-upon amount differs from the state’s calculation, the agreement must explain why. Ultimately, the court retains the authority to review any terms related to child support and is also not obligated to recognize or enforce any terms about physical custodial arrangements.
So…How can I provide for my children if I can’t include child support/custody in a prenup?
At this point, you might be wondering what parents can do to protect their current or future children’s interests. The answer is simple: create a prenup to ensure that your financial needs are met in the event of a divorce. Wait, what? I thought you said we can’t use a prenup to protect our children?! Well, you can’t directly use a prenup to dictate child support and/or custody, but you ensure your assets are protected so you have enough to provide for your children at any point (whether you have to pay child support or request it).
Alimony and lump-sum payments
Alimony is when one spouse is obligated to provide financial support to the other spouse or ex-spouse. If one of you plans to stop working to take care of the children, or if there’s a significant income difference between the two of you, this is one conversation you don’t want to avoid. Although you cannot address child support in your prenup, you can ensure that your financial needs are covered so that you can continue to maintain your household after a divorce.
Home sweet home (Primary residence clause)
Ensuring that your children will remain in the same home can mean the difference between unexpectedly uprooting yourself and your children and having a familiar place to call home. This is especially important during a hectic and stressful time.
Agree to disagree (Saving time in a divorce)
The average divorce can drag on for 6 months to 1 year or even longer, especially when the parties can’t agree on child custody and support. Not only will both of you waste thousands of dollars on attorney’s fees and court costs, but more importantly, it can also damage your relationships and interactions with your children. Prenups can cut down on time spent in court–while it cannot cut down on child matters, you can ensure to streamline any discussions over property division and alimony.
Requirement for mediation
Alternative dispute resolution is a much more cost-effective option for spouses getting a divorce. In fact, many courts now require spouses to attend mediation to settle any remaining disputes peacefully. In the event of a divorce, you can both agree to make an effort to resolve disputes amicably. This can position you both for a much less contentious divorce. Less court time means more time for you to focus on your children.
How HelloPrenup can help
Prenups are legal contracts that cover financial and lifestyle decisions between spouses. However, their influence reaches far beyond that. A well-drafted prenup can significantly impact your life as well as the lives of your current or future children. While a prenup cannot explicitly address child custody and support arrangements, HelloPrenup allows you to create a personalized prenup that ensures your financial needs are met in the event of a divorce.
It’s important to plan for unexpected scenarios. Let HelloPrenup assist you with creating a customized prenup that suits your specific circumstances and ultimately safeguards your family’s interests.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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