Can I address child custody in a prenuptial agreement?

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prenuptial agreement

Before getting married, many couples have reservations about creating a prenuptial agreement because they don’t want to consider the possibility of their marriage ending before they’ve even tied the knot. However, some couples are eager to draft this legal contract as they are already thinking of ways to protect themselves and maybe even their children in the event of a divorce. While a prenuptial agreement can clarify asset ownership and stipulate property division terms, many couples wonder whether they can address child custody. Please continue reading to learn whether you can include custody provisions in a prenuptial agreement and how a trusted Suffolk County Prenuptial Agreement Attorney can help you today. 

Can I include child custody provisions in a prenuptial agreement?

Unfortunately, while you can include who owns which assets and how they should be divided in a prenuptial agreement, you cannot address child custody. Regardless of whether your spouse agrees to your wishes, you cannot include child custody provisions in a prenuptial agreement. The primary reason prenuptial agreements cannot address child custody is that they may not consider a child’s best interests.

When determining custody arrangements, the court considers various factors, including each parent’s ability to meet the child’s needs, earning capacity, living situation, and other significant components. The main objective of “the best interests” of a child standard is to safeguard a child’s emotional, mental, and physical well-being. In most cases, the court believes it is in a child’s best interest to benefit from a relationship with both parents. However, this is sometimes impossible as one parent may be unfit as they cannot provide a safe living environment or meet their overall needs. Therefore, waiving parental rights in a prenuptial agreement could negatively impact a child.

What can be included in a prenuptial agreement?

Despite being unable to address child custody in a prenuptial agreement, that does not mean you cannot benefit from creating this legal contract. Without a prenuptial agreement, you cannot protect yourself against your former spouse’s debts. If debt were accumulated during the marriage, it would be considered marital property. As such, creditors can go after marital property, meaning you could be liable for their debt. In a prenuptial agreement, you can limit your liability by stipulating they take full ownership of the debt.

In addition, you make critical distinctions about property division regarding marital and separate property. Marital property is split between a divorcing couple equitably, but not necessarily in an even 50/50 split. Therefore, to ensure you receive a fair portion of your marital property and keep your separate property out of property division, you should stipulate who gets what and how marital assets should be divided. Ultimately, there are numerous issues you can address in a prenuptial agreement. By addressing these issues, you can mitigate conflict in the future.

If you’re considering drafting a prenuptial agreement, contact an adept attorney from The Law Offices of Susan A. Kassel, P.C., who can help you safeguard your hard-earned assets.

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What Our Clients Are Saying

I hired Susan to represent me in a divorce matter where I was fighting for custody and to limit my wife's equitable share of our assets. I won custody of our son, kept the marital residence, kept my professional practice, kept my building and paid less than half to my wife. This was after a long-term marriage. She could persuade the court that equitable is not equal and sometimes the man does deserve to win!

‐ Dave

I first must say that I had been represented by two prior attorneys both of whom had simply taken my money and left me nothing to show for it in my custody case. They kept telling me what they were doing for me but I found out they were lying. Susan on the other hand had gotten me temporary custody and support for my children and myself within two months of hiring her. I cannot say enough about her.

‐ Craig

After talking to a few other attorneys, I hired Susan to represent me in my divorce and custody dispute. I was reluctant to go with her because she was the cheapest out of all the other attorneys I met with, but I'm so glad I did. I am 100% positive no one else would have done such a great job with my case as Susan and her staff. Her work is quality, her staff is reliable and her character is honorable. There...

‐ Linda

I had a very difficult case where I had already burned through two attorneys who were unable to get me custody of my children and complete my divorce. Susan was able to rapidly work out an agreement and not let it just malinger on like my previous experiences. She was also considerate of my financial situation unlike all of the other lawyers I had spoken to. I highly recommend her if you want complete and caring service with an in-depth knowledge of...

‐ Joanne


The Law Offices of Susan A. Kassel, P.C. proudly serves clients throughout Suffolk County, New York in their divorce, family law, and estate planning matters. If you require the services of an experienced Suffolk County attorney, schedule a consultation with The Law Offices of Susan A. Kassel, P.C. today.

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