Can New Jersey Prenups Include Child Custody Terms?

If you are getting married, it is important to understand the uses and limitations of prenups, especially when it comes to child custody and related issues. For more information and skilled legal representation, reach out to a Cherry Hill child custody attorney today.

What is a Prenup?

Prenuptial agreements, commonly referred to as prenups, are legal contracts two people can enter into before getting married. This type of document is designed to establish how certain financial matters will be handled if the marriage were to ever end in divorce, death, or some other unexpected way. The contract will state how the couple’s assets and debts will be distributed, whether one spouse will pay alimony to the other, and more.

Can New Jersey Prenups Include Child Custody Terms?

Prenups can be important tools for protecting each individual’s financial interests and setting expectations for the future, but it is important to understand their limitations. New Jersey law does not allow couples to make agreements about child custody or visitation before a separation or divorce, so no, custody terms cannot be included in a prenup.

The child’s interests always come first in New Jersey, and courts are required to make decisions based on what is best for the child. The parents’ preference is not relevant. The future is also incredibly unpredictable. A prenup signed before marriage cannot accurately predict future circumstances like where the couple will live, the child’s needs, health issues, etc. What may seem fair or reasonable at the time of a prenup will likely not apply years later.

Only a court has final authority to set the terms of child custody, and it will do so after evaluating all relevant factors during a separation or divorce.

What Can I Include in a Prenuptial Agreement?

While the terms of a child custody agreement cannot be included in or enforced through a prenuptial agreement, there are many topics that can be. In general, financial matters that have reasonable terms will be considered legitimate.

According to NJ Statutes 37:2-34, the following elements can be included in a prenup in New Jersey.

• The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
• The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
• The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;
• The modification or elimination of spousal or one partner in a civil union couple support;
• The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
• The ownership rights in and disposition of the death benefit from a life insurance policy;
• The choice of law governing the construction of the agreement; and
• Any other matter, including their personal rights and obligations, not in violation of public policy

As long as the prenup is entered into voluntarily and with full disclosure by both parties, the above terms will generally be enforced by a court.

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