Prenuptial Agreements and Children Born of the Marriage
A prenuptial agreement is also known as a premarital agreement or a pre-nup. They’re usually valid and enforceable contracts that are entered into before a legally recognized marriage or civil union. They establish the property and financial rights of the parties in the event of a divorce or a legal dissolution of a civil union.
The intended effect of the agreement
In short, a prenuptial agreement details out all of the assets and debts of the parties and sets forth what the property rights of each party to the agreement will be in the event of a divorce or dissolution. Other rights and responsibilities might also be included. There are certain things that a pre-nup doesn’t permit people to do. Those typically consist of matters that are against the law of a state or against its public policy. Any such provisions might not be enforceable in a court of law. In some cases a court might even be called upon to invalidate an entire premarital agreement.
Child custody, visitation and support
The most important issues that premarital agreements aren’t permitted to address are child custody, visitation and support. The rationale behind this rule is that these are matters that turn on the best interests of the children. They are to be considered and decided by a court at the time that the divorce or dissolution proceeding is being heard. These decisions are either approved by a judge pursuant to agreement of the parties in court, or a determination is made in accordance with the evidence and testimony presented in contested proceedings.
Any agreements on custody, visitation or child support that appear in a contract simply aren’t considered by a judge because the parties can’t predict family and economic circumstances before an appropriate petition is filed and a hearing held. An attorney who concentrates his or her practice in family law isn’t going to make this mistake in drafting a premarital agreement. If you’re thinking of drafting your own agreement, don’t condition it on these issues. The entire agreement could be invalidated.