A Prenuptial Agreement traditionally makes divorce and the equitable distribution of property much easier if the parties decided to make one prior to the marriage. As I have written before, the Agreement can resolve the vast majority of the issues facing the parties in a divorce including, but not limited to, how business interests will be divided, how to deal with retirement funds, who will be responsible for marital debt and the terms of alimony. However, if the parties have children, they could still face significant litigation.
Although Prenuptial Agreements can resolve the issues between the parties, when another person is involved, the situation becomes more complicated. As a result, child custody and child support cannot be determined in a Prenuptial Agreement. When it comes to child custody, although the parties could come to an agreement, that agreement is always modifiable and either party could petition the Court for a modification at any time based on the circumstances. The Court could then choose to disregard the agreement and craft a custody order based on the best interests of the child.
Similarly, with regard to child support, the parties could certainly come to an agreement on an amount of support and operate under that agreement for as long as they like. However, child support belongs to the child, not the former spouse and, much like child custody, it is always modifiable. Therefore, despite any agreement, either spouse could petition the Court to modify the support amount and ask that the guidelines be used to calculate the appropriate support obligation.
If you have a Prenuptial Agreement and are contemplating divorce, know that the process will likely involve much less fighting when it comes to the assets you and your spouse accumulated during your marriage. After all, that’s the purpose of the Agreement in the first place. However, as you can see, if you and your spouse have children, there is a fair chance that you may end up litigating child support and custody if you can’t come to an agreement as to how to handle those two issues. Therefore, even if you have a Prenuptial Agreement, it is important that you contact an experienced divorce attorney to review your case and discuss how to proceed with the divorce.