Prenuptial Agreements: Providing for the Children

For many couples, the decision to marry includes a desire to start a family.  Some couples come to the marriage with children from prior relationships.  These parents and parents-to-be all desire the same thing:  the best for their children.  A prenuptial agreement can memorialize the agreements between the parties regarding the children.

New York's Domestic Relations Law (DRL) 236[B](3) permits the inclusion of "provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this chapter."

There are complex and emotional issues to be discussed, such as those regarding religious upbringing; parenting styles; allowances and other money issues; choice of schools (public; private; homeschooling); the appointment of guardians in the event of the death of the parents; which holidays are celebrated, and with whom; vacations with the children; and the amount of time spent with grandparents.  Provisions may be made in the prenup for health care coverage (medical, dental, vision, psychological) and how unreimbursed medical costs will be handled.  With the rising costs of higher education, some couples may want to set out a provision for how these costs will be funded.  Depending upon the circumstances, some parties may choose to set up education accounts as separate property.

Time spent with grandparents may seem like a given to most couples, but in the event of a separation or divorce the right to visitation by the grandparent is not automatic.  In 2000 the U.S. Supreme Court in Troxel v. Granville (530 U.S. 57 (2000)) held that forcing a parent to allow a grandparent visitation rights violated a parent's fundamental rights and liberty interests concerning the upbringing of their child.  After Troxel, grandparents who wish a court to order grandparent visitation must show that the absence of such visitation is not in the best interest of the child.  Therefore, if such visitation is important to the parties, it should be clearly stated in the prenuptial agreement.

If one party is already paying child support for children from a prior relationship, then it is important to talk through how the family finances will be organized fairly so that resentment does not become a factor in the marriage.  And where stepchildren and visitation are concerned, having clarity about parental responsibilities, the role of the step-parent, and household responsibilities for the blended family are paramount to prevent disagreements, divided loyalties, and harsh feelings.

Coming to terms in a prenup concerning children requires an open discussion about these and other issues that concern the welfare of children in the planned marriage.  Your attorney can assist you in drafting an agreement that will satisfy your needs and the needs of present and future children.

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