As parents, it’s common to want to protect our children. When entering into a prenup, parents may wonder, how can this agreement benefit our child(ren)? While generally, prenups can’t make decisions regarding child custody or support, as that is determined by state law, there are still numerous ways these agreements, and planning ahead in general, can protect the little ones.
It’s no secret that divorce is common these days. In the United States, there are roughly 13.6 single parents raising 21 million children. Those are some pretty staggering figures. Divorce and separation can financially affect more than just mom and dad. With that in mind, let’s explore how children can be incorporated into prenuptial agreements to provide stability and protect their futures.
What is child support?
First things first. What exactly is child support? Child support is a payment made by one parent to another parent, generally the parent who has majority custody of the child, which is intended to cover the costs of a child’s basic care and needs. These needs can include housing, food, clothing, education, childcare, medical care, and even entertainment.
Child support and prenups
As we touched on above, generally, you cannot include contractual provisions related to child support or custody in your prenup. For example, you can’t state in your prenup that you are not responsible for any child support should you and your spouse divorce, leaving your spouse solely on the hook for financially supporting the children. Even if your spouse is a multi-billionaire and you both agree that the arrangement is fair, a court will likely refuse to honor that agreement. Why? Because generally, both parents have a legal obligation to financially support their children. It would be against “public policy” to allow parents to contract away their right to support their children. Additionally, the courts have the power to make decisions that are “in the best interest of the child”. This authority allows the courts to refuse to honor any agreements it disagrees with in relation to children.
With that being said, a minority of states do allow prenups to include *some* child support provisions. One of those states is Texas. Texas’ prenuptial agreement statute states that “the right of a child to support may not be adversely affected by a premarital agreement.” Texas Family Code § 4.003(b). This essentially means that while you can’t set a child custody maximum (for example, spouse A will pay not more than $100 a month in child support), you can likely set a minimum amount. For example, where one parent is much wealthier, a couple may want to set a minimum child support amount that goes above and beyond what is required by state law.
Keep in mind that while some states, such as Texas, do allow prenups to touch on child support, there is no guarantee that the court will enforce any support provisions you include in your agreement. The court may determine that whatever agreement you reached with your partner is not in the best interest of the child. If that happens, the court can make its own decision as to child support, as permitted by state law.
What if your state doesn’t allow child custody decisions to be made in prenups?
You can still factor your children into your prenup even if you can’t explicitly include provisions related to child custody or support. How? Through other financial arrangements and provisions that benefit the parents. By ensuring that the prenup provides fully and fairly for both parents, the children will necessarily reap the benefits.
Let’s look at an example. Jordan and James entered into a prenup in which they both waived their right to alimony and decided that all joint property will be split based on each party’s financial contribution. Because they plan on living in James’ home, James gets the house should they divorce.
Jordan and James decided to start their family soon after they got married. Both have great careers but mutually decide that Jordan should stay home to care for the children. Sadly, down the road, the couple divorced. Based on their prenuptial agreement and the fact that she gave up her career for the family, Jordan gets almost nothing in the divorce. This results in a drastic lifestyle change for both Jordan and the children. While James is required to pay child support, Jordan is barely getting by and is unable to maintain the lifestyle the children grew accustomed to during the marriage.
So, even though James is paying child support, the children still suffer when one of their parents is not sufficiently provided for in the divorce. How could their prenup have remedied this situation? Well, for starters, Jordan and James could have discussed the likelihood of one of them giving up their career for the children. The prenup could have addressed this situation by including a provision ensuring that this spouse was not disadvantaged as a result of their unpaid labor. By ensuring that Jordan was entitled to alimony or a certain percentage of James’ assets, she could have been sufficiently protected and the marital lifestyle would have been preserved for both parents, for the sake of the children.
If they were unsure whether or not one of them was going to give up their career, they could have included a sunset provision in the prenup which would only go into effect after they made the decision. In that case, they could have kept the prenup the way it was (alimony waiver, ect.) but could have also specified that if one of them gives up their career, the entire prenup is thrown out, or that spouse is entitled to alimony, ect.
Here is another important note about alimony and child support: child support takes precedence in court. What does that mean? Child support will always be paid before alimony. So, if there is not enough money left after paying child support, the court will not require payment of alimony, even if a spouse is entitled to it under state law. So, consider this when creating your prenup so that you and your spouse can ensure that both spouses are fully provided for in the event of divorce, for the benefit of the children.
How can HelloPrenup help?
At HelloPrenup, you can easily create a prenup that works for you, your spouse, and any current or future children. Our platform easily walks you through the prenup creation and negotiation process. Additional clauses can be included that can help contribute to the future well-being of your children. These clauses may include health insurance clauses (who provides insurance for the children), lump-sum payments (used to compensate for differing incomes), and sunset clauses (prenup expiration dates). Get started on your prenup today!
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].