Sometime before the wedding, many couples consider drawing up a prenuptial as part of the wedding planning process. To put a document like this in place is usually not done out of distrust for a potential spouse, but for the protection of yourself and your current or future children. One of the most common prenuptial questions asked by engaged couples is, “Can children be written into a prenup?”
In the eyes of the law, a child is seen as a person, not a financial asset. For this reason, a child cannot be written into a prenup as an asset but may very well be impacted by the provisions put into the document. With your own future as well as your current or future children’s inheritance at stake, having a prenuptial agreement drawn up is a simple way to protect your financial assets.
What is a prenup?
A prenuptial, sometimes nicknamed prenup, is a written contract established between two people prior to their marriage. This document deals primarily with financial issues such as property ownership and debts.
Can children be written into a prenup?
Many couples that decide to put a prenuptial in place wonder if children can be written into a prenup. Since prenuptials deal almost solely with financial concerns, they cannot legally limit support or rights in regard to children. The best interest of a child is decided under the circumstances at the time of the decision, not in advance. A prenup might say mom will have primary custody, but years later she could be an active alcoholic or drug abuser. Life changes, and it’s impossible to predict what will be best for a child under unknown future circumstances.
Texas law prohibits limiting support in a prenup, but allows an obligation to pay a minimum amount. That said, there are several ways in which children can be affected by issues addressed in a couple’s prenuptial agreement.
- Family Property Inheritance: If one party of the prenup states that a specific piece of family property must stay within the birth family, it can protect children from losing said property that they could stand to one day inherit.
- Inclusion of Children from Previous Relationships: It is possible for one party of the prenuptial to request that their children from a previous relationship inherit some of their property.
- Debt Protection: A prenup can help safeguard against creditors trying to claim marital property due to the debt of only one spouse. Without this provision, children of the couple could potentially stand to lose some of their future inheritance.
- Asset Protection: In the case of a divorce, a prenuptial agreement can determine ahead of time which party gets what. This thought process can also benefit children in preventing them from losing a potential inheritance to the divorced spouse.
There are several ways in which children or situations pertaining to children cannot be written into a prenup and they primarily pertain to child custody and child support.
- Child Custody: Decisions about child custody, whether by agreement or trial, are made under the circumstances at that time.
- Child Support: Terms of child support cannot be limited in a prenup, but minimum guarantees can be included.
- Specific Terms of Childcare: Statements as to how a child should be raised, where they can spend vacations and holidays, and so on are statements of belief, and maybe intent, but are not enforceable like the rest of a prenup.
How an Attorney Can Help With a Prenup
Perhaps the most important component of a prenuptial is that it adheres to proper state law. Prenuptials that do not conform to the legal standards risk being thrown out of court.
To ensure that a prenuptial meets state law and is enforceable, it is prudent to enlist the services of an experienced and reputable family law attorney. It is worth noting that some states require each party to a prenup to have a different attorney represent them. Texas does not, but the agreement is unenforceable if signed involuntarily. Having a lawyer for each fiancé diminishes the likelihood that a party will successfully argue the prenup was not signed voluntarily.
When it comes to finding an attorney for your prenuptial agreement, there are several considerations to keep in mind.
- Confirm the lawyer that has a valid license to practice law and is in good standing with the local bar association. With the proliferation on online services, this can be a problem.
- Choose an attorney experienced in writing and litigating prenuptial agreements. Courtroom experience enforcing and defending prenups is valuable when writing one.
- Verify the attorney’s fees and clarify what services are covered and what, if any, services will require additional fees.
Getting married is a big step and protecting your individual and joint future is a smart way to mark your union. By enlisting the help of an experienced prenuptial attorney, you can have peace of mind and not have to worry about questions like, “Can children be written into a prenup?”
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