One of my colleagues recently asked me, “will a prenup protect me from husband’s child support?” Sorry, but I had to answer her NO; a prenup can’t protect child support payment. No, it can’t, as the issue related to child support and custody can’t be included in the prenup contract.
A prenuptial agreement, also known as a prenup, is a legal document that couples enter into before they get married. This document can outline how property and assets will be divided in the event of a divorce and can also include provisions for child support and alimony payments.
In this article, I will discuss three reasons why a prenup can’t protect child support.
Can We Use a Prenup to Keep Child Support Payments: No, for 3 Reasons
#1. Prenup can’t ensure the best interest of the child
Child support is meant to provide financial support for the upbringing and well-being of a child. On the other hand, a prenup only looks at the interests of the divorcing couple. So, even if there is a clause regarding child support in the prenup, the court will not consider it.
Moreover, it’s up to the family court judge to determine what will best serve the child during a divorce, and a prenup will not be able to override this decision.
#2. Child support is typically based on the income of the non-custodial parent:
Child support is typically calculated based on the non-custodial parent’s income and the number of children involved. A prenup will not be able to change this fact or protect a spouse from having to pay child support, regardless of their financial situation.
Further, from a prenup, there is no chance of knowing who will be the non-custodial parent. So, a prenup will not be able to protect one spouse from having to pay child support.
#3. The judge of family courts awards child support based on the total circumstances:
The amount and type of child support can vary depending on the specific circumstances of each case, such as the income and financial needs of the child, their living arrangements, and any special expenses they may have.
A prenup will be unable to determine or protect a spouse from these factors that could affect their child support payments. Ultimately, it will be up to the family court judge to decide on child support based on what will best serve the child’s needs.
There are three things you cannot include in a prenuptial agreement. The below video about prenuptial agreement might be helpful for you:
Things a Prenuptial Agreement Cannot Contain
A prenuptial agreement is a legal contract entered into by a couple before they marry. The agreement typically outlines how the couple’s assets will be divided in the event of a divorce or death.
While a prenuptial agreement can be a helpful way to protect your assets, there are certain things that it cannot contain. Here are they-
#1. Anything that encourages divorce:
A prenuptial agreement cannot include anything that would encourage divorce. This means that the agreement cannot include clauses that would give one spouse an incentive to divorce, such as a financial bonus for doing so.
#2. Any provision relating to child custody and child support:
A prenuptial agreement cannot include any provisions relating to child custody and child support. The family court judge will make these important decisions based on the child’s best interests, not what is outlined in a prenup.
#3. Unconscionable or illegal provisions:
A prenuptial agreement cannot contain any provisions that are deemed unconscionable or illegal. This means that the agreement cannot include things such as one spouse waiving their right to spousal support or forcing the other spouse to give up their legal rights.
#3. Any unfair terms:
A prenuptial agreement cannot contain any unfair or one-sided terms, such as all assets belonging solely to one spouse or unfairly limiting the assets and support of the other spouse. The terms of the agreement must be fair and equitable for both spouses.
#4. Being signed under duress:
A prenuptial agreement is not legally valid if it was signed under duress or coercion. This means that one spouse cannot force the other to sign the agreement by using threats or intimidation.
Both spouses must enter the agreement willingly and fully know its contents. Either party has the right to back out of the agreement if they feel pressured into signing it.
#5. Any terms that are against public policy:
A prenuptial agreement cannot have any terms that oppose public policy. This encompasses stipulations restricting a spouse’s opportunity to get essential medical care or continue their education.
It also involves any attempts to bypass laws, such as tax evasion or concealing assets during divorce proceedings. Furthermore, the conditions of the agreement cannot go against public laws, such as laws against child labour or discrimination.
#6. Anything which is unreal and unreasonable:
A prenuptial agreement cannot include anything unreal or unreasonable. This can include an exorbitant amount for spousal support or a requirement for one spouse to lose significant weight within a specific time frame.
FAQs on will a Prenup Protect Me from Husband’s Child Support
What does a prenup include?
A prenuptial agreement, or prenup, is a contract between two people before they get married. The purpose of a prenup is to establish each person’s financial rights and responsibilities in the event of a divorce.
Prenups can cover many topics but most commonly address issues such as spousal support, property division, and debt allocation.
While prenups are not legally required in any state, they can help provide clarity and peace of mind for couples who are getting married. For those considering a prenup, consulting with an attorney to ensure that the agreement is fair and legally binding is necessary.
Does a prenup override state law?
No, a prenup does not override state law. A prenuptial agreement (prenup) is a contract between two people before they are married that outlines how assets and debts will be divided in the event of a divorce.
Prenups are generally enforceable in all 50 states, but some state-specific laws could affect their validity. For example, New York is one of the few states that does not recognise oral prenuptial agreements, so any agreement made between spouses in New York would have to be in writing to be valid.
If there is any conflict between the terms of a prenuptial agreement and state law, the state law will usually prevail. This is because prenuptial agreements are typically seen as contracts between two private parties, while state laws are designed to protect the public interest.
However, there are some exceptions to this rule. For example, if a prenuptial agreement contains an illegal provision, such as one that waives child support, the court will not enforce that provision.
It’s important to note that a prenuptial agreement cannot override certain rights that are given to spouses under state law, such as the right to receive alimony or spousal support.
Additionally, the terms of a prenup cannot be used to determine child custody or visitation arrangements in the event of a divorce. The court will likely ignore any provisions related to these topics.
How does a prenuptial agreement affect a will?
A prenuptial agreement can affect a will in several ways.
First, if a couple has any joint property, such as a house or savings account, they will need to expressly state in their will how that property should be divided in the event of their death. Without a prenup, state law would determine how the property is divided.
Second, a prenup can affect who inherits your property if you die without a will. If you have any children from a previous marriage, you may want to ensure that they inherit your property rather than your current spouse.
Finally, a prenup can help to avoid conflict among heirs by clearly defining who owns what property. If you have a large estate and multiple heirs, a prenup can help to prevent disputes among your loved ones after you’re gone.
Whether you’re planning to get married or you’re already married, it’s important to understand how a prenuptial agreement can affect your will.
Can a prenup protect you from your spouse’s debt?
A prenuptial agreement can protect you from your spouse’s debt in some cases, but it depends on the laws of your state. In community property states, debts incurred by either spouse during the marriage are generally considered to be joint debts of both spouses.
This means that even if only one spouse is responsible for the debt, both spouses may be held liable for repayment. However, if you have a prenuptial agreement that states that each spouse will be responsible for their debts, the court may enforce that provision and relieve you of responsibility for your spouse’s debt.
A prenuptial agreement cannot protect you from all types of debt. For example, suppose your spouse incurs debt for necessary expenses during the marriage, such as medical bills or credit card debt for essential items.
In that case, you may still be liable for repayment even if you have a prenup. Additionally, some types of debt, such as student loans, cannot be discharged in bankruptcy, so a prenup would not protect you from responsibility for that debt.
In short, a prenuptial agreement can sometimes protect you from your spouse’s debt, but it is not a foolproof way to avoid all responsibility for your spouse’s debts.
Can a prenup include future assets?
Yes, a prenup can include future assets. For example, suppose you are expecting to inherit money from a relative in the future. In that case, you can specify in your prenup that this money will be considered your separate property and will not be subject to division in the event of a divorce.
You can also include provisions for how future assets will be divided if you should divorce. For example, you could agree that any property acquired during the marriage will be divided equally between the two of you.
It’s important to note that courts generally have the final say when it comes to dividing assets in a divorce. Hence, a prenup does not guarantee that your assets will be divided strictly as you specify. However, a prenup can give you peace of mind knowing that your assets are somewhat protected in the event of a divorce.
Do I have to pay child support if I marry someone with a child?
If you marry someone who already has a child, you generally will not be responsible for paying that person’s child support. Child support is typically only paid by the biological parent of a child.
However, there are some circumstances where you could be required to pay child support even if you are not the biological parent.
For example, if you adopt your spouse’s child or if you sign an agreement stating that you will be responsible for the child’s support.
In any case, consult with an attorney before getting married to ensure that you understand your rights and obligations concerning your spouse’s children.
Can you force your spouse to reimburse you after a prenup?
The answer depends on the circumstances. If your spouse signed the prenup under duress or without fully understanding its terms, he or she might be able to have the agreement invalidated.
However, if your spouse willingly signed the prenup and then later decided that he or she doesn’t want to honour it, you may have little recourse. In any case, it is always best to consult with an attorney before taking any legal action.
Do judges look at prenups and postnups differently?
There is no hard and fast rule, but judges typically look at prenups more sceptically than postnups. This is because prenups are usually signed before the marriage when the spouses are not as emotionally invested in the relationship.
On the other hand, a postnup is typically signed after the marriage, when the spouses have already committed to each other.
Additionally, courts typically only consider postnups to be valid if the terms are fair to both spouses. This means that a postnup cannot altogether waive one spouse’s rights, such as the right to alimony or child support.
If a postnup contains unfair terms, the court may choose to ignore those terms or only enforce the parts of the agreement that are fair.
Finally, a prenup will not protect a spouse from having to pay child support in the event of a divorce. Have an open and honest conversation with your partner about your expectations and plans for child support before getting married.
Additionally, seek the guidance of a legal professional when drafting a prenup, as it will not protect you from child support payments.