Can Child Custody Be Included in a Prenuptial Agreement?

Can you put child custody in a prenup? It’s a question that arises amidst the complexities of family law and prenuptial agreements. While prenups typically address financial matters, such as property division and spousal support, the issue of child custody introduces a unique set of considerations. Couples may wonder if they can include provisions regarding custody and visitation arrangements in their prenuptial agreements to provide clarity and security in the event of a divorce or separation. This article delves into the legal landscape surrounding the inclusion of child custody terms in prenups, exploring the feasibility, limitations, and implications of such arrangements within the context of family law.

Can You Include Child Custody in a Prenup? Exploring the Legal Landscape

It may surprise you to learn that despite the distractions and responsibilities, some people believe they can navigate their divorce without the assistance of a divorce attorney. The same folks who may have hired a professional to plan their wedding could believe that they have the time and bandwidth to divorce their spouse. It doesn’t make logical sense but some things in life don’t, after all. However, I would not recommend that you go into your divorce with the same attitude. Consider speaking to an experienced family law attorney before beginning a divorce. The attorneys with the Law Office of Bryan Fagan are a good place to start your search.

How painful is your divorce going to be?

Everybody knows that divorce is no fun. Even if you know that you need a divorce or are desperate to separate yourself from your spouse the process of getting the divorce is not enjoyable in the least. It takes time, patience, and money. It takes talking to your kids about uncomfortable subjects while disrupting their lives to a great extent. You also need to spend some amount of time with lawyers and a judge. Not exactly a weekend trip with your buddies or a central Texas winery tour with your girlfriends. Divorce is hard. There is no getting around that.

The key role of premarital agreements

The question that you need to ask yourself is whether you want to make the divorce painful or just sort of painful. Would you prefer to have anesthesia, or would you prefer to feel the whole thing right down to the bone, like having your tooth pulled or a cavity filled? A divorce is not dissimilar from this analogy at the dentist. You can make your divorce easier. However, doing so usually takes some planning and forethought to accomplish. What is one way to make your divorce easier, you may be asking? Maybe you want to know the single most important way that you can make your divorce easier on you?

A premarital agreement is probably the foremost way that you can make your divorce easier on you and your family. However, the problem with a premarital agreement is that you need to think about Doing this in advance of your divorce. You either need to take care of your property agreement before marriage or after marriage but before the divorce begins. This will allow you to sort out many of the outstanding issues of your case before engaging in what could be a contentious and heated divorce scenario.

Marital property agreements: planning for the future

Nobody is arguing that beginning marriage is exciting. There is all the promise of a new phase of your relationship and the ability to grow together with your spouse. Children, a house, challenges that you can overcome together, and things of this nature or what you can focus on when beginning your marriage. However, with that excitement can come a realization that some marriages do not last. At that stage, it may be time to consider the prospect of a marital property agreement and the impact that it could have on your family in the long term.

A prenuptial agreement is simply not something that will ever be written about in a storybook or a romance novel. It is not romantic at all to consider the end of your marriage and how that could be the result of a divorce. In that type of situation, you can set aside whatever differences you have with your spouse and consider what it means to go through the process of drafting a premarital property agreement or marital property agreement.

Why create a prenuptial agreement?

I think the first place you need to begin when considering a prenuptial or nuptial property agreement is to speak with your spouse or fiancé about the process. Many times, it is easy to think about what it takes to do something but difficult to put that plan into motion. Communication may not be a strong suit for you and your spouse. You may be effective at many things in your marriage but if communication is not one of them then you will have a tougher time working through difficult patches in your marriage. You may even find that you have trouble discussing the concept of a prenuptial or nuptial property agreement. However, you cannot be sure what your spouse is thinking about the subject until you ask him or her.

First, let’s run through what you cannot include in your property agreement. First off- nothing having to do with child custody can be included. This includes child support, child custody, possession, visitation, or things of this nature. A best interests standard rules the day when it comes to determining issues related to your children in a court order. If your children are not born yet, how can you determine what is in their best interests? Even if you already have children together you cannot anticipate what their needs are going to be in the future. For now, keep your plans for your kids to yourself, and do not include anything about them in your property agreement.

Important considerations for marital property agreements

Next, you cannot include something like incentives within your property agreement regarding a divorce. As in, you cannot incentivize a divorce or remain in a marriage. Promising your spouse $100,000 if you stay married for longer than ten years is sort of strange to think about, but this is the type of thing that some folks consider putting in their marital property agreement. Every relationship is indeed different, but this is taking things to a whole new level. You cannot put prizes out into the future for your spouse within a property agreement. You can do whatever you want within the confines of your marriage, but a property agreement is a contract. Contracting for something like that is not allowed in Texas family law. Don’t include that sort of language or it could put you in a difficult position.

Another area that I would not include in your premarital or marital property agreement is matters related to intimate details about your marriage. You can address personal matters between you and your spouse within your marriage, but you should not include them in a premarital or marital property agreement.

Probably the main benefit that you should consider when it comes to drafting a marital property agreement is that you can protect your financial assets effectively by using one of these documents. If you’ve chosen to marry later in life, you may now face the prospect of potentially allowing your spouse to receive a fair share of your estate in the event of divorce or death. In such a scenario, you can proactively prepare for the possibility of divorce by including language dividing up the property before marriage. It takes planning to do this, but the outcomes are usually better for everyone.

Advantages of marital property agreements: planning ahead for divorce

Why do I say that? The reality is that you and your spouse are better off negotiating over this information now rather than when you are going through a divorce. When you go through a divorce you are bringing into focus many controversies and upsetting elements of your marriage. That you will not have a clear mind when doing so. It is better to contemplate these issues when you are clear-headed rather than when you are in the fog of a divorce. Issues tend to pile up in a divorce and often lead to disagreements and even more fighting. You can avoid this situation by thinking ahead and having a marital property agreement in place when and if a divorce becomes necessary.

There is also an element of protection, both for you and your spouse when it comes to one of these documents. Imagine yourself as a young man or woman marrying for the first time, with a significantly older spouse. There is nothing wrong with having an age difference with your spouse. However, you need to consider the liabilities from a financial standpoint in this type of scenario.

Considering debt and marital property agreements

Most notably, does your spouse have outstanding debts associated with a prior marriage or with a small business? When did your spouse last check their credit score and credit report to ensure they’re up to date on all payments and have had no issues with identity compromise? These are significant concerns to have to enter a marriage for anyone. You are not a bad person or unromantic to consider your liability when it comes to subject matter like this.

This brings us to what a marital or pre-marital property agreement could potentially do for you and your family. In that case, you could see a situation develop where you may end up becoming responsible for your spouse’s debts. Texas is a community property state which means that spouses can share assets on a more equal basis than in other states. However, the same also applies to deaths. Even if the debt does not bear your name, you could still cap some degree of responsibility when it comes to paying off that debt on behalf of a spouse.

Benefits of premarital or marital property agreements

For this reason, a premarital or marital property agreement might be something of interest to both you and your spouse. Consider the benefits of having a pre-marital property agreement. You all could sort through the thorniest and most difficult talk about circumstances associated with your marriage before you even disagree about it. Sometimes in marriage, the worst part of the entire aspect of having difficult discussions is letting an issue fester and become worse and worse before you deal with it directly. A pre-marital property agreement forces the two of you to work through these issues together as opposed to allowing misunderstandings to ruin your marriage from the start.

Another great aspect of premarital or marital property agreements is that you can use these documents to support any estate planning or end-of-life planning that you have already begun to engage in. Every family is different in terms of how you are considering the end-of-life scenarios as far as planning for the future. For many families, this means drafting wills, trusts, or other estate planning documents. You can use your premarital or marital property agreement to reinforce what had already been agreed to in your estate planning documents like a will.

Simply put, the state of Texas does not want you to contract matters related to your children. You can create a premarital or marital property agreement without involving a family court judge. Therefore, there is no oversight on what the two of you could come up with in these agreements. The state of Texas wants to prevent people from going outside of the law to potentially create arrangements that are not in line with Texas public policy and are not in the best interests of children. Therefore, any language regarding child custody matters can be expected not to be honored by a future divorce court judge.

Texas family courts and child custody matters

Simply put, a Texas family court will have the final say in matters related to child custody. The court heavily relies on the best interest of the child standard for any issues concerning your child in a divorce. Determining the best interests of your children, even during a divorce, is a challenging process. Requesting the court to honor a contract created by you and your spouse before having children is a difficult request and will not be granted.

In some circumstances, you may be asking a court to allow for a particular level of child support. As much as you might want to, contract for issues related to your children, it is generally a waste of time to try to even do so in the process of negotiating for a marital or pre-marital property agreement. The court will always have the final say to uphold what is in the best interests of your child. Even if you and your spouse reached an amicable agreement through negotiation, future divorce courts are unlikely to honor any arrangements regarding your children.

Initiating communication for premarital or marital property agreements

If you’re interested in creating a premarital or marital property agreement with your spouse, your best bet is to communicate that desire directly to them. Again, no one is saying that you and your spouse must have perfect communication with one another to work through issues like this. However, taking the first step to communicate these issues is sometimes the most difficult part of the journey.

As such, you are better off directly engaging with your spouse in these discussions instead of leaving it up to chance or expecting him or her to just know that this is what you want to do. Speaking to an experienced family law attorney who can help negotiate this type of agreement with your spouse is another good place for you to begin the process of sorting through some of the thornier issues that come up in marriages.


Can child custody be included in a prenup? This question highlights the intersection of legal and familial concerns. While prenuptial agreements primarily focus on financial matters, the inclusion of custody provisions raises complex legal and ethical considerations. While some jurisdictions may permit limited aspects of custody to be addressed, courts ultimately prioritize the best interests of the child, which can override any prenup stipulations. As couples navigate the intricacies of prenuptial agreements and family law, seeking guidance from legal professionals can help clarify rights, responsibilities, and potential outcomes in matters of child custody and divorce.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.


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Other Articles you may be interested in:

  1. What does a prenuptial agreement do?
  2. Can a Prenup Leave You With Nothing?
  3. Prenuptial agreements in Texas
  4. Child Custody Basics in Texas
  5. Are Dads at a Disadvantage when trying to win 50/50 custody in a Texas Divorce?
  6. Sole Managing Conservator in a Child Custody Case in Texas?
  7. Help!! My Ex-Spouse Kidnapped my Child
  8. How Much Will My Texas Child Custody Case Cost?
  9. When Can a Minor Child Weigh in on Custody Decisions in Texas?
  10. Child Custody Geographic Restrictions in Texas
  11. Amendments, Revocations & Postmarital Agreements


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