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Can child custody be included in a prenuptial agreement?

When it comes to planning for marriage most of us think about the same type of things. A venue, flowers, food, whether you should serve alcohol, who to invite, and where to go on your honeymoon. Wedding planning is a major industry, and we all know someone (maybe even ourselves) who went through the trouble and expense of hiring a professional wedding planner to walk us through the process. Depending upon how large the wedding will be this may be necessary since you have a job and other responsibilities to attend to. Planning a perfect wedding while holding down a job is not easy.

Now, think about for a moment what it must be like to go through a divorce. You have all the same responsibilities that you did when you were planning the wedding plus many more. Now you have kids. Those kids have activities and interests and get sick and need you to stay home from work. You may have more work responsibilities since you have moved up through your company and are taking on more sophisticated clients or projects. What you thought was being “busy” back before you were married has become a situation where now you truly are “busy.” It’s a good busy in many ways but you now know that you need a divorce.

You may be surprised to learn that some people, despite all the distractions and responsibilities, believe that they do not need a divorce attorney to help them through their divorce. 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. It takes patience. It takes 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 question that you need to ask yourself is whether you want to make the divorce painful or just sort of painful. Like getting your tooth pulled or a cavity filled: would you prefer to have the anesthesia, or would you prefer to feel the whole thing right down to the bone? 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 would either need to take care of your property agreement before you are married or once you get married 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.

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.

Simply put a prenuptial agreement is never going to be something 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.

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. Things that are personal to the two of you can certainly be worked on between the two of you within your marriage but should not make their way into 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. Consider that you may have chosen to get married later in life and are now faced with the prospect of potentially allowing your spouse to receive a fair share of your estate in the event of your death or divorce. In that case, you can prepare in advance for the possibility of divorce by including language dividing up the property before you are even married. It takes planning to do this, but the outcomes are usually better for everyone.

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. Put yourself in a position where you are a young man or woman who is getting married for the first time to 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. Most notably, does your spouse have outstanding debts associated with a prior marriage or with a small business? When was the last time your spouse has checked their credit score and credit report to make sure they are up to date on all of their payments and that they have not had any issues associated with their identity having been compromised previously? 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.

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 2 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.

Issues related to children being included in your premarital or marital property agreement

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, you can expect that any language regarding child custody matters will not be honored in the future by a divorce court judge.

Simply put, a Texas family court will have the final say when it comes to matters related to issues in child custody. As we discussed earlier the best interest of the child standard will be relied upon heavily when it comes to any matter related to your child in your divorce. It is a difficult process to determine the best interests of your children even during a divorce case. What you would be asking a court to do is honor a contract created by you and your spouse before even having children. This is a difficult thing to ask and will not be honored by a court.

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 what you and your spouse came to agree upon was done amicably and using negotiation you are still unlikely to have anything Regarding your children honored by a future divorce court.

If you are interested in having a premarital or marital property agreement created between you and your spouse your best bet is to Communicate that desire to your spouse directly. 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.

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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undefinedIf you want to know more about what you can do, CLICK the button below to get your FREE E-book: “Child Custody E-Book.”

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  11. Amendments, Revocations & Postmarital Agreements
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