Can Child Custody Be Included in a Prenuptial Agreement?

A gavel resting on a prenuptial agreement

What Can and Cannot Be In Your Prenup

Engaged couples may have a lot of questions about creating their prenuptial agreement and what they should be including. If one or both parties is bringing children into the marriage, they may have an understanding of what could happen in terms of custody should they get divorced. But would they need to put this in writing?

Child Custody and Support Cannot Be in Premarital Agreements

In Illinois, matters concerning child custody and support cannot be contracted in advance. Because decisions regarding children are done with their best interests in mind at the time of the divorce, a couple cannot predetermine that one parent would assume a custodial role or be the financial contributor. There are many reasons why this is the case:

  • Children have a right to receive child support.

  • Every child is different, so you cannot predetermine how much would be needed to raise them.

  • You cannot predict what may happen over the course of the marriage that will make one parent more suitable to assume custody than the other.

Along with this, a premarital agreement cannot deny the child receiving financial support in the future. These things must be decided in the courtroom or during mediation when filing for divorce.

What You Should Consider Including Instead

If you still want to consider your current or future children when creating a prenuptial agreement, here are some things you can include that don’t involve child custody or support but still can affect them:

  • Inheritance - if you have children from a previous relationship and want to make sure that their rights to your assets are protected, this can be included.

  • Debt protection - You can limit debt liability in your prenuptial agreement. Including this helps protect your marital property (and therefore your child’s inheritance) from being sought after.

If you are curious about what else you can include in your premarital agreement that would be beneficial to your children, consider hiring a family law attorney that specialises in this area.

Premarital Questions? We Have Answers

Thinking about divorce before even getting married may feel like it’ll cause a strain on your relationship, but having a prenuptial agreement protects every party involved. If you are considering getting a prenuptial agreement for your impending marriage, considering hiring an experienced attorney to get your documents in order.


Law Offices of Jonathan Merel, P.C. has helped numerous couples with their premarital arrangements and will work with you to create the best decision for your future. Call (312) 487-2795 or fill out the form on our website to schedule a consultation.

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