What exactly is a Prenuptial Agreement?

A prenup, as it is commonly referred to, is a legally binding agreement between two people who are looking to be married. The document allows you both to make decisions about what will happen in the event that you guys ever decide to get divorced later in life. You can include provisions for how you will distribute your property, how you will handle debts, if either of you can claim alimony, etc. Almost any decision included in a prenup is enforceable except: child support, child custody, and parenting time.

The reason they do this is because, for New Jersey courts, protecting a child is of the utmost importance (as it should be), and you never know what will unfold down the line. As adults, you and your partner have the right to make the best decisions for yourselves having years of knowledge, wisdom, and life experience. You have the right to contract for yourself. But, what if things change by the time you have a child? What if the relationship has become toxic or abusive? What if one parent has become incapacitated or disabled? What if the financial situation has drastically changed?

A child’s well-being is paramount, and should trump any contract parents agreed to before they got married. For this reason, the courts determine child custody, visitation, and child support at the time of the divorce based on the circumstances as they exist at that time.

So, is there anything you can do to create guidelines?

Well, in the event that you and your partner are heading towards divorce, you can discuss a custody agreement between yourselves. You guys know your situations and schedules better than a court ever will, and if possible, you want to come to an agreement that works for both of you before it gets to a point where you two can’t agree on anything anymore. You can draft this on your own, or with a mediator. Your agreement will be recent, based on existing circumstances and specifics, so it will most likely reflect the best interests of the child better than anything you guys would have agreed to before you got married. And, the court genuinely does prefer for parents to be able to agree on their own about support and custody for the children, so if you guys can come to an agreement on this, that’s perfect. You can submit it to the court during the process of your divorce, and it can be officially incorporated.

If you and your partner have a volatile relationship with your ex or simply cannot come to an agreement, then it will be up to the court to decide. The court will look at the specifics of your schedules and availability for the children, your living situation, your financial situation, your background, parents’ relationships with the child, etc.

What’s the Takeaway?

You cannot include provisions in your prenup for child custody, child support, or visitation time with both parents. But, in the event of a divorce, you guys can come up with an agreement together to incorporate into your divorce, or the court can decide those matters for you. 

Keep in mind that the court will always aim to decide what is best for a child’s mental and physical well-being, their development, and their overall growth and happiness. But you and your partner know your child better than the court ever will. So if at all possible, try to work together on this. Children are so very important.