When you write a prenup, or prenuptial agreement, you and your spouse can come to an agreement in advance about how many of your potential conflicts will be solved if you were to get a divorce. No one wants to think about divorce before walking down the aisle, but this document can protect you and make the divorce process smoother if it becomes necessary. One thing that shouldn’t be included in a prenup is a provision about child custody. Our Morris County, NJ prenuptial agreement attorneys can tell you why you should avoid this common pitfall.
What is the Purpose of a Prenup?
A prenup is not meant to decide child custody. Its primary purpose is to address financial matters. So a prenuptial agreement can include things like:
- Protections for family heirlooms and assets
- Protections for personal assets
- Provisions relating to children from previous marriages
- Rules about how divorce will go, i.e. whether something like mediation will be required
- How marital and separate assets will be handled in a divorce
Why Shouldn’t Child Custody Be Covered in a Prenup?
The problem here is that child custody is seen as a personal matter, not a financial one, even though custody agreements are obviously going to have financial consequences. The court does not want your prenup deciding. Instead, the priority is figuring out what is in the best interest of the child.
A judge can look at many different factors when making this decision. Some important considerations include the finances of each parent, the existing relationships between the child and their parents, and the physical and mental health of each parent. Depending on the age of the children involved, their preferences can also make an impact.
What Happens If I Put Child Custody in My Prenup?
When you put child custody in your prenup, that provision is going to be rejected by any judge who sees it. You and your spouse do not get to make a decree about what is best for your children before you even get married.
This provision of your prenup is going to be stricken and ignored. Your entire agreement could even end up getting invalidated. If you made the mistake of including child custody in an agreement where it had no place, other errors may jeopardize the legality of the entire prenup.
Should I Get a Lawyer’s Help to Write This Agreement?
As you can see, it’s easy to make mistakes when drafting legal agreements like a prenup. We suggest consulting a lawyer if you and your partner are planning to make a prenuptial agreement. An attorney from our firm can help you ensure that all of the important financial matters are included, and we’ll double-check everything so that you won’t have to worry about legal headaches down the road.
Meet With Our Family Attorneys
If you want to draft a prenuptial agreement of your own, contact Townsend, Tomaio & Newmark, L.L.C. to schedule a consultation. Our lawyers are ready to help you make a legally binding prenup that won’t cause issues later.
