Prenuptial agreements can be valuable legal instruments for high net worth individuals,
business owners, and spouses with children from a previous relationship. A well-crafted
prenuptial or postnuptial (created after marriage) agreement can impact alimony, property
and debt division, and it can even disinherit a spouse where a will or trust lack such power.
But what about child custody? Can a spouse waive or reduce their rights to child custody in a
prenuptial agreement before their child is even born? Can a spouse’s parental rights be
terminated through a prenuptial or postnuptial agreement?
Contrary to popular belief, prenuptial and postnuptial agreements cannot determine, govern,
or direct child custody. It’s not possible here in Colorado or in any state. While prenups and
postnups can be powerful legal instruments in regards to marital assets, alimony, debt and
property division, they have zero authority over child custody.
If a divorcing couple cannot reach an agreement on child custody, only a judge can decide for
them and such a decision will be made based on the best interests of the child doctrine.
Advantages of a Prenuptial Agreement
So, now that we know prenuptial agreements cannot determine child custody, let’s take a look
at what they can do. There are many advantages to having a prenuptial agreement, including
but not limited to:
A prenup encourages honesty and open communication about money between the couple.
In the event of a divorce, it saves money on litigation.
It gives the spouses peace of mind if their marriage ends because they know exactly what to
expect instead of fearing a divorce battle.
Since Colorado is an equitable distribution state, there is no guarantee that a couple’s assets
will be divided equally. A prenup clarifies exactly how the couple’s assets will be divided in a
A well-drafted prenup not only allows a couple to address the common legal hurdles faced by
divorcing couples, but it provides a quick resolution.
A prenup can ensure that separate property remains separate and is not reclassified as a
“marital asset” during a divorce.
Prenuptial agreements are not romantic, but considering that 5 out of 10 first marriages end in
divorce, they are very practical. The key to creating a legally sound prenuptial agreement is for
you both to hire your own attorneys to help you draft a fair agreement before you sign
anything. Child custody as mentioned earlier, cannot be enforced through a premarital or a
postnuptial agreement, and that’s unlikely to change.