Children of the Marriage
All legal practitioners will state that prenuptial agreements can not dictate issues of child support or child custody and visitation. This is almost entirely correct. The courts reserve jurisdiction over these issues. However, should the parties’ agree, and state their mutually agreed upon wishes regarding issues of custody and visitation in the prenuptial agreement, the court will take the parties’ wishes into consideration when making its final determination about this issue. Issues of child support are not within the purview of a prenuptial agreement.
It can be a good idea to record a reasonably agreed upon plan in the beginning of a relationship when both parties’ are happy with each other and generally in agreement with such issues. Once a reasonable and agreed upon plan is set in writing it becomes more difficult for a party to back out of.
For example: we typically prefer to create prenuptial agreements that state:
Both parties’ acknowledge that the court retains jurisdiction over child custody matters, however it is the intent of the parties’ to equally share both physical and legal custody, in the best interest of the child/children, of any children born to the parties’.
Both parties’ acknowledge the rights of the children to have a substantial and meaningful relationship with both parents.
Therefore, it is agreed between the parties’ that any children born to the Intended Husband and Intended Wife will be equally shared in the event of a termination of the marriage or separation. Each parent will have physical custody an equal amount of time. Both parties’ agree not to restrict access or interfere with the other parent’s time with the children.
When a court awards the parents joint/equal physical custody each parent supports the child[ren] when in their presence thereby substantially (if not entirely) diminishing the need for one party to pay child support to the other. While there will be general costs such as insurance, medical, educational fees, etc, these fees can be paid directly to the provider and not to the other parent, unless so order by the court.