Edward R. Weinstein, Esq.

Does A Prenup Include Custody and Child Support? In a word, NO!

As a New Jersey Divorce Attorney since 1996, I have drafted many Prenuptial Agreements (“Prenup”). On occasion, I have had clients ask me verbally about (although I have noticed over the years that many times the client has a typed list of what issues they would like the Prenup to address) including child custody and child support. I first politely explain that while any and all financial issues are absolutely appropriate for a Preup, it is against New Jersey Divorce law to address children in such an Agreement.

Essentially, it is against public policy to address children in a Prenup. The Family Part of the Superior Court of New Jersey must protect children first and foremost. This is also know as parens patriae. Family judges in New Jersey are mandated to keep in mind that the public policy power of the state of New Jersey to defend and safeguard the best interests of children.

Regarding custody, any and all Court Orders are “without prejudice.” This simply means that, based upon a change of circumstances being proven, the NJ Family Court has the power to readdress a custody and/or parenting time agreement in order to ensure that the best interests of the children in the case are guarded at all times. As all parents know, the issues of a child at the age of six years of age are much different when that child is 16 years old. Therefore, it would be against public policy and the relevant case law for a Prenup, which could have been drafted when a child was 6 years old to determine that child’s fate when they are 16 years old.

As to child support, it is obvious that an individual’s income could radically change over time. People change careers. Some folks become disabled. Others lose high paying jobs and take whatever work they can get while others enjoy a significant increase of income as their career blossoms. In any event, legally this is the “child’s” money and neither parent has the “right” to predetermine such an essential aspect of NJ Family Law.

If you or a friend is interested in a New Jersey Prenuptial Agreement, please contact my office here.