You can put many different things in a prenuptial agreement before you get married, or you can add them to a postnuptial agreement after you get married. For example, maybe you want to protect a business that you own, so you can exclude it from property division. Or maybe you have a significant inheritance that you got from your parents and you want to make sure none of it goes to your spouse if you split up.
However, you’re not allowed to determine child custody in this prenuptial agreement. For instance, say that your spouse wants to make sure they get sole custody if you get divorced. Even if you agree to this at the time, the court is not going to uphold this decision. Why is this?
The child’s best interests
The court operates this way because they are focused on the child’s best interests. It is generally considered that it is best for a child to have a relationship with a fit parent. The court does not want to take that away from them. As such, they are more likely to order that the two of you share custody, unless there appears to be a legitimate barrier that makes this impossible.
Additionally, many prenuptial agreements are written before couples have even had children. You may have agreed to sign away your rights to have a relationship with that hypothetical child, but they did not. After they were born, it would be unfair to them if these decisions were made on their behalf – even by their own parents. Therefore, the court will make the custody decisions in real-time, as the divorce happens, disregarding anything in a prenuptial agreement.
If you find yourself in a complicated divorce with child custody issues, be sure you know exactly what steps to take.