Can Children Be Included In A Prenup Or Postnup Agreement?

Texas law will not enforce prenuptial and postnuptial agreements that involve children unless the agreement is in the child’s best interest. The best interest of the child is based on the circumstances and decided by the court at the time the decision is made.

Texas Family Code § 153.002 simply states:

“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

Texas Family Code § 4.003(b) says:

“The right of a child to support may not be adversely affected by a premarital agreement.”

4.003(b) does not prohibit a minimum level of child support, but a maximum in a prenuptial agreement is ineffective.

There is no similar statute for Texas’ postnuptial agreements, but as a matter of public policy, the best interest of a child will be decided when the decision is made and cannot be limited by a contract. A premarital or postmarital agreement is a type of contract.

Everyone changes. That’s inevitable. Over time, most people grow and mature, but some do not. Some seem to become more immature. People develop quirks, illnesses, addictions, and become involved with new people. Being responsible for a child brings many changes. It is not possible to decide what is best for a child not even born yet. Even when the child has already been born, nobody can predict which parent will be the best suited even one year in the future.

A person who fervently believes the other spouse should have primary custody might find himself divorcing an alcoholic who cannot be left alone with a child. The ways people change and the new people they let into their life are endless. The best interest of children cannot be determined in advance.

Children And Child Support

Texas Family Code §4.003(b) says the right of a child to support may not be adversely affected by a premarital agreement. The Family Code does not mention whether children can be included in a postnuptial agreement. Contracts between parents that negatively affect children are unenforceable and Texas courts will decide what’s best using the facts when the decision is made. A contract between parents that benefits a child can be enforced.

Family code §4.003(b) prohibits “adversely” affecting the rights of a child in a prenup. Presumably, an agreement that sets minimum child support and allows a judge to exceed it, would be enforceable. Nobody knows who will be paying that support, so setting the amount is difficult. An agreement could state that if one parent has primary conservatorship of the child the other will pay support no less than a specific amount, a percentage of income, or of net worth. Marital agreements allow flexibility about property and alimony, and this might influence a custody dispute, but minimally. Even if one parent will leave the marriage penniless, the judge will set child support and can take into account the custodial parent’s resources.

Children From A Previous Marriage

Property reserved for children of a previous marriage, or their expected inheritance, can be secured in the event of a divorce by specifying in an agreement certain property is not community and will remain separate property. This also ensures it can be left to the children in a will if the parent passes while married.

People may express their belief about what would be best for the children if the marriage ends while the children are minors. Marriages end by death or divorce and an agreement can express opinion, but it is not binding.

It is best not to include children at all in marital agreements. The reason for the prenup or postnup is because life is unpredictable. That unpredictability makes it impossible to know what will be best for children in the future. Even statements of belief or intent can result in awkward cross-examination trying to explain them away. It is best to just leave it out.

DISCLAIMER: This site and any information contained herein in intended for informational purposes only and should not be as legal advice. Seek competent legal counsel for advice on any legal matter.

© Copyright Brian McNamara, 2016,may be reproduced with credit to the author.