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Avoid including child custody terms in prenuptial agreements

Protecting your marriage with a prenuptial agreement, also called a prenup, is one of the most important decisions you can make as you approach a new life with person you love. However, if a prenuptial agreement includes terms that do not stand up to scrutiny in court, the agreement as a whole suffers.

When prenuptial agreements include contentious terms, all the protections it affords may be in danger. A court could decide to toss the agreement out entirely. While there are many issues that may compromise a prenuptial agreement, some of the most common misuses of a prenup include child custody and support arrangements.

Courts do not allow parents to predetermine child custody or child support terms in a prenuptial agreement, although the preferences of each party may play a role in the process. In the eyes of the court, child custody arrangements depend on determining what is in the best interests of the child, rather than only what the parents may prefer.

If two parents present a parenting plan and custody agreement to a court and the court does not believe that the plan is in the best interests of the child, it may either send them back to the drawing board or hand down a custody order it believes does represent the child’s best interests.

Likewise, child support is not a matter that the courts leave up to parents to determine. Instead, a court examines the resources of each parent and the needs of the child to determine what is appropriate. If a prenup includes child support terms, these will automatically be discarded.

As you create your prenuptial agreement, be mindful to work within the boundaries of the law to establish secure protections that will withstand the scrutiny of the court. An experienced family law attorney can offer guidance and ensure that you understand all of the implications of your agreement, protecting your rights, your marriage and the one you love.

Source: FindLaw, “What Can and Cannot be Included in Prenuptial Agreements,” accessed March 02, 2018

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