A prenuptial agreement is a terrific way to address the financial side of your marriage and of a potential divorce. For instance, you may want to note that all of your assets should remain separate assets and not marital assets, meaning you won’t have to divide them with your spouse during a divorce. Many wealthy couples do this to protect that wealth, especially if they’re worried about a short marriage.
But what about your child custody rights? Say you and your soon-to-be-spouse have talked about having a child right away. Can you use the prenup to address how custody gets divided or whether or not you have to pay child support if you get divorced?
Your prenup cannot address either area
The short answer is that no, your prenup can never discuss child custody or child support. These decisions are up to you and your spouse, and the court has the final say.
The issue is that custody and support both affect the child, not just you. For instance, say the court knows that it’s in a child’s best interests to spend time with both parents. Even if your ex agreed to give you full custody and to never see the child, and if it’s what you both want, that is objectively worse for the child. You do not get to make that type of decision on their behalf. The court will overrule your prenup and could even throw out the entire document on the grounds that you included provisions you weren’t allowed to include.
It’s important to understand all of the legal options you have, both while you work on a prenup and as you go through a divorce.