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Can a prenuptial agreement determine child custody?

Prenuptial agreements are excellent tools that couples may use to protect each other and themselves as they approach marriage. However, these agreements have very strict limitations in certain areas, and may prove unenforceable if they include terms that violate these limitations. Before you and your future spouse create a prenuptial agreement, be sure that you understand how to avoid these trouble areas.

Two of the most commonly-misunderstood areas of a marriage that a prenuptial agreement cannot govern are child custody and child support in the event of divorce. Child custody involves the rights of at least three individuals, and the preferences of each party or their ability to uphold a certain parenting and custody agreement may change over time.

Courts do prefer for parents to work together to create a parenting plan that involves them both, unless one or both parties exhibit some direct threat to the child. Courts do not, however, accept terms dictated by parents on these issues, and retain the right to reject a custody plan if it deems in unfair or unsafe, or simply not in the best interests of the child.

Similarly, child support is not a matter where parents to decide much at all. Courts look at the resources of a parent and the needs of the child to determine fair child support, and will not honor any terms placed around child support in a prenuptial agreement.

Before you create a prenuptial agreement you may live to regret, you should consult with an experienced attorney to understand your rights and restrictions during the creation of this important document. Professional guidance keeps your needs in focus while ensuring that you do not jeopardize your protections with poor planning.

Source: FindLaw, "What Can and Cannot be Included in Prenuptial Agreements," accessed Jan. 19, 2018

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