
21 Jan 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.
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