There are two main areas of focus in most divorce cases. The first is figuring out child custody issues, addressing both physical and legal custody. The second is dividing marital assets, along with determining which funds or possessions may count as separate assets.
You can use a prenuptial agreement to make some of these financial decisions. You may want to look at your financial accounts now and determine exactly who would get which funds in a divorce. You may want to protect business interests, especially if the company has been growing significantly during the marriage. Your prenup can be used to do much of this in advance, making the eventual divorce easier.
But what about the child custody side of things? Could you put in a provision saying that you get sole custody of your children if your spouse files for divorce?
Custody clauses may invalidate the prenup
No, you cannot address child custody issues in your prenuptial agreement. If you try to do so anyway, it could invalidate the entire document.
With child custody, the court either has to agree to the parents’ custody arrangement or make one themselves and issue a court order. Either way, this has to happen during the divorce. The court will consider the child’s best interests at that moment. A prenuptial agreement that was written 10 years before would not be fair to the child or the parents.
Divorce issues
What this means is that you can’t plan in advance for some common divorce issues. You simply need to begin looking into all of your legal options when you know the divorce is inevitable.
