A prenuptial agreement is mostly designed to protect assets. It covers what kind of assets each spouse will leave the marriage with if they divorce. What this agreement cannot do is issue any kind of legally binding mandate on what will happen if the couple has children and custody needs to be decided upon. You cannot include child custody and visitation agreements in a prenup. Instead, you need to sort this out in court with a Suffolk County child custody lawyer.
Why are Child Custody and Visitation Not Enforceable in a Prenuptial Agreement?
A prenuptial agreement generally covers financial matters. It is not completely surprising that some couples think that they can include something about child custody and child support as a result. This is a financial matter too, right?
In a way you would be right, but there are other factors to consider. The child is not a bank account, a valuable art collection, or another asset that can be divided up in a prenuptial agreement. They are a living, breathing person with their own needs. Additionally, the cost of raising them is also not completely predictable, so any numbers thrown around in a prenup could end up being completely useless.
How Will Child Custody and Visitation Be Decided?
Instead, child custody must be decided by looking at what the best interests of the child will be. A line about what happens to them in the prenuptial agreement does not matter. The court willl determine who should get custody by looking at a wide variety of factors, including:
- The fitness of both parents
- Who can offer a stable home
- How close the parents’ residences are to the child’s school
- Any history of domestic violence
- The work obligations of both parents
- The child’s stated preference, if they are old enough
- The financial situations of both parents
All of these elements matter far more than what you would put in a prenuptial agreement. Once the court examines the evidence and listens to testimony from both sides, they can decide who will be the custodial parent.
Will I Have to Pay Child Support?
Child support gets paid by whichever parent does not have primary custody. So if you only have visitation with your child, then you are going to have to pay child support. This is also not something that you can simply make a rule about in your prenuptial agreement. The court will determine how much support you should have to pay.
Contact Our Legal Team
If you going through a divorce, our attorneys can help. Contact Peter V. Mandi & Associates, Inc. and set up a consultation with our team. We can tell you more about how we can help you fight for a fair deal in your divorce. Whether you are arguing over child custody, visitation, or child support, an experienced lawyer from our firm is ready to assist you.