A lot of clients often ask me about children and their involvement in a pre-nuptial agreement. They are surprised to hear the response I give which is they cannot be contracted away in a prenuptial agreement. Obviously public policy dictates a lot about the parameters of a premarital agreement. And if you think about the idea of contracting away your child’s or future child’s custody and support payments that would cause complete chaos.
Child support: Agreements fixing or waiving child support are invalid to the extent they derogate from the parents’ statutory child support obligation.
Spousal support: A premarital (or other) agreement cannot validly waive the mutual duty of support owed between spouses while they are married and living together.
On the other hand, when entered into voluntarily by parties who are each represented by independent counsel and aware of the effect of the agreement, a post-1985 premarital waiver of postdissolution support does not offend contemporary public policy and is not per se unenforceable.
Premarital agreements have become increasingly common. One of the apparent reasons is that, more frequently, people are entering marriage with children and property from a prior marriage; their concern is to preserve preexisting property rights and interests for their own children and heirs and to avoid problems in this regard if the contemplated new marriage ultimately breaks up. In addition, however, negotiations.
over benefits from the contemplated marriage are also a major focal point—e.g., if the marriage does break up, who pays for career training, educational and other pursuits that had been commenced during the marriage; how, if at all, will insurance beneficiary designations be affected? These are issues the prospective spouses might not be concerned with at the time of their negotiations, but which ought to be brought to their attention.
By the same token, many clients contemplating marriage understandably do not want to focus on the fact eventual marriage dissolution is a possibility. The attorneys, in effect, are caught in the middle; it is a delicate and problematic task to convince the clients they should consider and negotiate over the consequences of a marriage dissolution (no matter how unlikely the possibility seems from foresight). There are no easy guidelines here on how to advise your clients or approach such negotiations; but the subject should be raised with them.