Can I Put Custody Rules in a Prenuptial Agreement?

Couples considering prenuptial agreements often focus on protecting assets, defining financial responsibilities, and setting alimony terms. But each family is unique, and some parents wonder if they can address child custody in their prenup.

The short answer is no, child custody cannot be predetermined in a premarital agreement. Talking to a West Palm Beach family attorney about what can and cannot be included in a prenup will help you make informed decisions.

What Should Be Included (and Excluded) 

A prenuptial agreement is a legal document that outlines how a couple’s assets and liabilities will be divided in the event of a divorce. You will want to specify how property, investments, and other assets will be divided if the marriage ends. This includes clarifying which assets are considered separate property and which are marital property.

Prenups can also outline the terms of alimony, including whether one spouse will receive it, how much they will receive, and for how long. Financial responsibilities can be outlined too, such as defining how finances should be handled during the marriage, including who will pay certain bills, how bank accounts will be managed, and how debts will be satisfied.

While prenuptial agreements are versatile tools for financial planning, there are certain things that should not be included.

• Custody and visitation rights. Florida law, like the law in most states, does not allow child custody or visitation arrangements to be predetermined in a prenuptial agreement. The best interests of a child is a determination that can only be made at the time of divorce or separation, based on the circumstances then.
• Child support. Similarly, child support obligations cannot be waived or predetermined in a prenup. Child support is considered a right of the child, and the appropriate amount needs to be based on the parents’ financial situations at the time of separation or divorce.
• Anything illegal or unconscionable. A prenup cannot include any provisions that are illegal or grossly unfair. If a court finds any part of the agreement to be unconscionable, it may invalidate the entire prenup.

While a prenuptial agreement cannot dictate custody arrangements, there are other steps you can take to ensure your child’s well-being.

Parenting Plans, Communication, and More

There are tools to obtain the custody arrangement you are seeking. While a parenting plan is not drafted prior to marriage, after separation couples can create a parenting plan that outlines custody and visitation arrangements. Also, while you can’t predetermine custody, you can focus on creating a strong co-parenting relationship during your marriage. Demonstrating a commitment to shared parenting responsibilities can set a positive foundation for any future custody arrangements.

If you’re considering a prenuptial agreement, consult with an experienced West Palm Beach family attorney who understands Florida law. A lawyer can help you create a prenup that protects your interests while ensuring that all provisions are legally enforceable.

Do you want assistance drafting a premarital agreement? The legal team at Bruce S. Rosenwater & Associates can provide you with the guidance and support you need to make informed decisions for your family’s future. Schedule a confidential consultation today.