While you and your fiancé are busy planning your wedding, there may be one thing you’re forgetting. Though it may not seem romantic, taking the time to have this discussion is critical. If you and your partner decide this is in your best interest, it’s important to understand what can and cannot be included in this document. One common source of confusion for many is whether or not they can include child custody terms in prenuptial agreements. In New York, child custody and support terms cannot be included in a legally enforceable prenuptial agreement, as these decisions must be made at the time of the divorce in accordance with the best interests of the child. If you have questions about this matter, you’ll want to keep reading to learn more and discover how Long Island prenuptial agreement lawyers can help you create the most effective document for your needs.
Can Child Custody Be Included in a Prenuptial Agreement in New York?
If you are interested in creating a prenuptial agreement, it’s important to understand that you cannot include terms and conditions regarding child custody. This is because these matters are ultimately determined by the courts at the time of the divorce. Child custody cannot be predetermined before a child is born or before the circumstances of the divorce unfold. Under New York Domestic Relations Law and case precedent, courts retain broad authority over custody determinations. As such, they are not bound by private agreements created and executed prior to the marriage.
Why New York Courts Reject Custody Provisions in Prenuptial Agreements
- New York law requires a child custody decision to be made in accordance with the best interests of the child at the time of the divorce
- A prenuptial agreement is created before marriage, ultimately making future circumstances uncertain
- Courts cannot enforce an agreement that impacts their ability to ensure a child’s well-being, safety, and stability
- If included, custody clauses are generally deemed invalid and struck from the agreement
For example, if you and your spouse can work together to determine a child custody schedule and do not have a prenup, the judge must still approve the plan for it to be legally binding. They will do this by examining whether or not the plan is in the best interest of the child. However, when you create a prenuptial agreement, it is a legally binding document already. As such, any terms and conditions cannot be changed by the courts. As circumstances change in your marriage, the parenting plan you previously established may no longer be in the best interest of the child. Because of this, the courts do not allow terms and conditions related to child custody to be included in the prenuptial agreement. If you have terms regarding child custody in your prenuptial agreement, that portion of your prenup will be deemed invalid.
What Does the “Best Interests of the Child” Mean in a Long Island Custody Matter?
When determining child custody in Nassau or Suffolk County, or anywhere throughout New York for that matter, the courts must evaluate a number of statutory elements to ensure the custody arrangement reflects the best situation for the long-term development, safety, and overall well-being of the child. These factors cannot be waived, nor can they be predetermined in a prenup.
For residents on Long Island, divorce cases are handled in the Nassau or Suffolk County Supreme Court, depending on where you reside. Though the Family Courts typically handle custody matters, disputes connected to a divorce are generally handled through a Supreme Court proceeding
Factors the Courts Must Consider
- Each parent’s age, income, earning capacity, and health
- The ability of each parent to provide a safe and stable home environment
- Whether or not there is a history of domestic abuse or neglect
- If either parent has substance issues or mental health conditions that impact their fitness
- The willingness of each parent to encourage a relationship between the child and their other parent
- The child’s preference, if they are deemed mature enough to provide one
What Can Be Included in a New York Prenuptial Agreement?
If you and your soon-to-be spouse have decided to establish a prenuptial agreement on Long Island, it’s imperative to understand the matters you may address in the contract. In accordance with Domestic Relations Law §236, to be enforceable, the agreement must be in writing, entered into and signed voluntarily by both parties, and meet the full financial disclosure requirements. Courts can invalidate a prenuptial agreement if it was signed under duress or fraud.
Commonly Enforceable Terms Included in Prenuptial Agreements
- Establishment of marital and separate property
- Terms for dividing marital assets
- Allocation of business interest
- Spousal support terms
- Responsibility for debts incurred prior to marriage
- Estate planning considerations
Can Child Support Be Addressed in a Prenuptial Agreement?
Like child custody, Long Island couples are not legally able to include terms and conditions related to child support in their prenuptial agreements. This is because the New York Courts must apply the New York Child Support Standards Act (CSSA) at the time of the divorce or separation. This is a statutory formula that depends on the income of each parent, as well as the number of children involved. Because these matters can change, support cannot be based on a predetermined amount.
Why Child Support Provisions Are Not Binding
- Child support is considered the fundamental right of the child, not the parents
- The courts must adhere to statutory guidelines at the time of separation
- Parnes cannot contractually remove a child’s right to financial support
- Judges have discretion to modify agreements that conflict with statutory requirements
What Happens if Custody Language Is Included in the Agreement?
If your Nassau County prenuptial agreement contains language revolving around child custody or child support, it’s important to understand that it will not necessarily invalidate the entire agreement. However, it can increase the risk of litigation, making your divorce more complex and tedious.
Potential Legal Consequences
- Custody clauses will generally be deemed unenforceable
- The court can invalidate the clause while enforcing the rest of the agreement
- Poor drafting and legal issues can result in challenges to the agreement as a whole
- Litigation can occur if enforceability is challenged
Strategic Alternatives for Couples Concerned About Future Parenting Issues
While it is not possible to predetermine custody on Long Island, there are a number of proactive steps you can take to consider future planning matters.
Practical Options
- Have open and honest discussions regarding parenting values and beliefs prior to marriage
- Create a co-parenting philosophy document (not legally binding)
- Establish a comprehensive estate plan to protect minor children
- Consider life insurance planning to provide for future children
- Ensure you update contracts and agreements following significant life changes
Contact an Experienced Long Island Prenuptial Agreement Attorney Today
When you and your fiancé are ready to create a prenuptial agreement, it’s in your best interest to connect with an experienced family law attorney from Barrows Levy, PLLC. Our team understands how complicated creating a prenuptial agreement can be, which is why we are ready to assist you through this process so you can achieve peace of mind for the future. Contact us today to learn more.
