Restrictions on Custody Provisions in Your Prenuptial Agreement in New Jersey

In New Jersey, a valid prenup has boundaries. Before creating a prenup that ultimately becomes nullified due to child custody terms that you and your future spouse thought you had agreed upon, explore the many misconceptions surrounding children as an aspect that can be addressed in prenuptial agreements under the law. Discuss your plans for a prenup and ensure the legal validity of this document by seeking assistance from the experienced New Jersey family law attorneys at Bronzino Law Firm.

Boundaries of a Prenup

A prenuptial agreement (prenup) is a legal contract entered into by a betrothed couple who want to put into writing how their assets and liabilities will be divvied up in the eventuality of a separation.  It also defines separate and shared property.  Separate property may include assets such as real estate, cars, or other major purchases made before the legal union.  Shared property might be retirement accounts, the family home, and country club memberships.  Businesses belonging to the couple or individually can be included with instructions on how they will be handled, valued, and possibly dissolved.  The prenup can include how alimony (spousal support) will be structured by setting the amount and duration or waiving it completely.  Because most debts during a marriage are shared, a prenup can clarify who is responsible for paying a debt and which debts are considered separate, such as personal or student loans and credit card debt incurred before the relationship begins.

Some prenups stipulate how the divorce will be negotiated, such as mediation before litigation. The terms must be fair to both parties, cannot be signed within less than 30 days of the wedding or union ceremony, and cannot be signed under duress. New Jersey law also considers a prenup to be invalid if it includes unenforceable measures such as the frequency of sexual relations, who does the household chores, monthly spending limits, or lifestyle changes in appearance such as weight gain. Importantly, child custody or support matters cannot be included. Let’s further into why New Jersey does not allow for the inclusion of child custody provisions in a prenup.

NJ Legal Perspective on Separating Prenups and Child Custody

The family court determines child custody based on the child’s best interests. These characteristics determine the custody plan created by the court. The court considers the child’s safety and well-being, parent-child relationships, the ability of both parents to provide a stable, loving home, the parent’s age, financial standing, employment, and living arrangements. The child’s emotional, mental, and physical needs are considered, as are the parent’s willingness to abide by the approved custody arrangement. Any possible dangers, such as drug or alcohol abuse, history of domestic violence, or child abuse, are also scrutinized.

Child custody issues cannot be included in a prenup because predetermining custody could be against the child’s best interests.  Relationships can change over time, and what was once a perfect custody plan may not fit five or ten years down the road. It is for this reason that putting child custody directives in a prenup goes against New Jersey’s public policy.  In the event of a divorce, parents are encouraged to create and present a custody plan to the judge based on the current circumstances of the children, parents, and family. This plan can be worked out through mediation or alternative resolution.  No matter what, the court’s focus is always on the child’s best interests.

Permitted Terms Regarding Children in Prenuptial Planning

Prenups can include how specific assets will be managed in relationship to the children.  College savings plans or trusts can be assigned to the children in a prenup to ensure their financial standing in the face of a divorce.  Prenups can also protect the potential assets of children from previous relationships.  The children from the first marriage will be protected by outlining how each parent’s separate property will be managed in terms of inheritance.  A prenup can reinforce a will, trust, or estate plan, naming the biological children from the first marriage as beneficiaries of separate assets such as life insurance, properties, investments, and other valued assets.

Potential Custody Outcomes Are Always Based on Current Considerations, Not Past Prenuptial Arrangements in New Jersey

There are essentially two main groups of custody:  legal and physical.  Legal custody is the ability to make decisions for your child.  For example, where they go to school, what medical treatments they can receive, and what religious education (if any) they will participate in.  Physical custody is where your child resides and the physical care they receive.

The courts prefer that both parents have custody, as many studies have shown that children are happier, healthier, and perform better in school when both parents participate actively in their upbringing.  For that reason, parents usually have joint legal and physical custody.  Although this can be a challenge for divorced parents because it requires compromise, communication, and cooperation, it ultimately is best for the children.

Sole legal and physical custody allows one parent to make significant decisions regarding the child and establish one residence for the child while allowing visitation with the other parent.  Shared physical custody is similar to joint custody.  Still, there is a more equal amount of custody time between the parents.  For example, the child may live with each parent on alternating weeks or every ten days, dividing holidays and vacations as somewhat as possible. The different custody arrangements that may result from a divorce are vast; however, one thing reigns true: a couple’s prenuptial agreement will not hold up when it comes to custody terms in New Jersey courts.

Book Your Prenup Strategy Session and Protect Your Children’s Financial Future by Contacting Our NJ Family Law Firm Today

Our team at Bronzino Law Firm knows how important it is to you to have a clear plan that will protect you and your spouse if you separate.  Our experienced family lawyers understand the intricate legal requirements of New Jersey’s laws when it comes to prenuptial agreements, and we can help to ensure a prenup that is fair and legally binding.  We prioritize clear communication and thorough documentation that explicitly details your wishes and those of your future spouse. We can advise you on addressing assets and investments to secure your financial future and your children’s in the years to come. By negotiating a fair division of assets and the payment of alimony, we can give you the confidence to know your future is secure. Our dedicated attorneys can also be relied upon to educate you fully about what can and what cannot be covered in your prenup, so you don’t run into problems based on child custody related provisions down the road.

If you find yourself involved in a child custody dispute, we can provide the resources to protect your and your child’s rights. We will fight for your right to be involved in your child’s life because we recognize that a meaningful relationship between a parent and child is invaluable. Our approach is always tailored to your specific needs to secure the optimal outcome for you and your child.  Our law firm helps clients in Barnegat, Atlantic Highlands, Freehold, Spring Lake, Red Bank, Toms River, Rumson, Tinton Falls, Holmdel, and across Southern New Jersey. If you have questions or concerns about a prenup and child custody, call us at  (732) 812-3102 or contact us online to gain clarity and further guidance. Start today with a free consultation.