When using a prenuptial agreement, you are addressing what will happen in a divorce, but you are doing it in advance. For instance, maybe you are bringing a significant amount of wealth to your marriage. You simply want to ensure that you get to keep your money, even if your spouse files for divorce, so the prenup helps to divide your financial assets.
But for many people, getting married is also the first step toward starting a family. If you and your spouse are planning on having children, then you will have to address child custody rights if you get divorced. Can you use your prenuptial agreement to either waive your child custody rights or secure them to ensure that you get to spend time with your child in the future?
Child custody issues cannot be addressed in a prenup
Understandably, you would want to address these custody issues, which are going to be very important to you during a divorce. But you cannot include them in a prenup, so this simply is not the way to do it.
Part of the issue with drafting a prenup at this stage is simply that your children have not been born yet. During a divorce, the court is going to consider numerous factors relating to you, your spouse, and your children. They will then make a child custody determination, often focusing on your child’s best interests.
But if you made child custody decisions in advance, your children would not be considered, and their best interests might not be upheld. For example, the court may believe that the child should have a relationship with both you and your ex, so asking your spouse to waive their child custody rights in a prenup would be problematic, and the document would not be enforced.
This is not to say that prenuptial agreements are not helpful, but you need to know exactly how to use them and what legal steps to take.