When couples discuss a prenuptial agreement, the conversation usually revolves around finances. But other questions often come up, and one of the most popular ones is “What about children?”
It’s a fair question. You’re in “thinking ahead” mode, so it makes sense to wonder if a prenup can outline things like child custody or child support. After all, if you can plan for your assets, why not your family, too?
The answer is straightforward: a prenup can’t include child-related matters because judges make child custody and support decisions based on what’s best for the child at the time of separation. If a prenup were to include them, it wouldn’t be binding.
Still, that doesn’t mean a prenup won’t impact your future children; it can indirectly influence their well-being in many ways, especially as related to finances. The key is understanding what it can and can’t do.
What a prenuptial agreement can and cannot cover
Let’s start with the basics. A prenup is a legal agreement (contract) to help couples protect their premarital assets and clarify each party’s rights as to how those assets are treated after marriage (whether in the case of divorce or the death of a partner).
However, there are limits to what a prenup can address — particularly when it comes to matters involving children.
What a prenuptial agreement can cover
Prenuptial agreements cover a broad range of issues pertaining to a couple’s financial lives, including:
- Defining marital vs. separate property: Clarifies which assets are considered marital and separate property for current assets and ones acquired during marriage.
- Establishing spousal support: Sets expectations for whether one spouse will receive financial support and, if so, under what conditions.
- Protecting business interests: Prevents business assets from being subject to division in a divorce, ensuring business continuity.
- Assigning responsibility for pre-existing debts: Protects one spouse from assuming the other’s financial obligations, such as student loans or personal debt.
- Preserving inheritances or family wealth: If assets are passed down, a prenup will direct how they will be handled.
What a prenuptial agreement can’t cover
While prenups offer financial protections, they can’t be used to determine child custody and support issues. More specifically, they can’t cover:
- Child custody arrangements: Courts determine custody based on the child’s best interests at the time of divorce, regardless of what a prenup states. Most prenups don’t include any custody or parenting time related provisions.
- Child support obligations: Child support is a legal right of the child, meaning parents cannot waive or pre-negotiate payments. However, a prenup can make references to the way a parent’s income can be calculated in the future, which is a factor of child support-related determinations at the time of divorce.
- Parental responsibilities or parenting roles: A prenup cannot assign parenting duties, limit a parent’s involvement, or dictate decision-making regarding a child’s upbringing.
- Decisions about future children: Courts will only rule on custody and support when a child exists—prenups cannot make legally binding decisions about children who are not yet born or adopted.
- Restrictions on a parent relocating with a child: Relocation cases are handled separately, and a prenup cannot preemptively block a parent from moving.
- Any terms that override a court’s authority on child-related matters: Courts always focus on the child’s well-being, meaning any provisions that attempt to dictate custody, support, or visitation will not be upheld.
For many couples, this distinction can be unexpected—after all, if a prenup can define how assets are divided, why can’t it also set terms for future parenting decisions?
The key difference lies in what a prenup is designed to protect.
A prenuptial agreement establishes financial rights between spouses, while child custody and support decisions are based on the child’s best interests and other financial factors at the time of separation. Because children’s needs can change over time, courts retain the authority to determine custody and support arrangements, regardless of what parties contracted for in a prenup.
That said, while a prenup can’t override court authority on child-related issues, it still can help create financial stability for a child.
How a prenup can impact child-related issues
Although a prenup won’t determine how child custody or child support play out, the financial agreements it outlines can still affect their future. Here are a few ways this might happen.
| Prenup Provision | How a Prenup Can Impact Children | Example Scenario |
| Defining marital vs. separate property | Protects certain assets from being considered marital property, which may affect a child’s inheritance. | Prevents a business from becoming marital property, preserving stability for adult children who may rely on or inherit it. |
| Protecting business interests | Prevents a business from becoming marital property, preserving stability for an adult children who may rely on or inherit it. | A business owner wants to keep ownership within the family. A prenup ensures that a divorce will not impact their child’s future stake or current ownership rights. |
| Preserving family wealth | Protects assets meant for children from previous relationships. | A parent with children from a prior marriage wants to make sure an inheritance from their parents stays with them. A prenup can safeguard these funds. |
| Debt responsibility | Shields one spouse from the other’s pre-existing debts, protecting financial resources available for children. | A spouse with significant student loans can confirm in a prenup that they alone are responsible, preventing financial strain on family savings. |
| Spousal support (alimony) agreements | Provides financial stability, which can impact a child’s post-divorce lifestyle. | A couple agrees that alimony will allow one parent to budget for the new living accommodations, which can impact a child’s quality of life. |
Take proactive steps to protect your child’s future
At Jacobs Berger, LLC, we help couples craft customized, strategic prenups that provide financial clarity while ensuring compliance with New Jersey family law.
Whether you want to protect assets, agree on financial responsibilities, or simply understand your options, our team can guide you through the process with clarity and confidence. Schedule a conversation with our team today.
