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Can your prenup determine custody?

On Behalf of | May 17, 2023 | Family Law

You’re going to get married, and you want to use a prenuptial agreement. Maybe you have significant assets already in your name, and you want to be sure that you protect them. For instance, this is sometimes done by business owners who want to make sure that there’s no chance they would lose the business in a divorce. 

However, you and your soon-to-be spouse begin talking about having children. This is something that you’ve always wanted. You also want to make sure that you get custody in the future, if you and your spouse were to get divorced. Is it as simple as adding a custody declaration to the prenup? 

A prenup is only for financial issues 

You actually cannot discuss child custody in a prenup at all. It’s just for financial issues, such as protecting your business or the assets that you own. Putting a child custody arrangement in your prenup could mean that it gets thrown out of court or that at least that portion of the document is ignored. 

Why is this? Remember that the court is focused on your children’s future. If you decide custody without their input, it could be a violation of the children’s rights. 

For instance, your partner may agree to sign over sole custody to you, but that would deprive your theoretical children of a relationship with their other parent. That’s not something that the court wants to do unless there’s evidence of abuse or something else of this nature. As such, custody has to be determined at the time of divorce. It can’t be done in advance. 

If you do find yourself facing a divorce, you can see why it may be a bit more complicated than you realized. Be sure you know about all of your legal options.