If there are no kids then you want the prenup to be nothing.

If there are children then you want some sort of clause that means money spent helps them. Like money spent on divorce lawyers means money spent on the child in the future.

Basically is there/are there anything you can put in a prenup that purely (like 90%+) only helps the child(ren).

Yes I just watched "Marriage Story" (it depicts a warring couple going through a coast-to-coast divorce, and have a son who is not yet an adult together).

1 Answer 1


It is hard to understand what you are saying, but here is an attempt.

Prenuptial agreements must be entered into with full financial disclosure, opportunity to be represented by counsel (at the other prospective spouse's expensive if the "poor spouse" can't afford a lawyer), and not under any undue duress.

Neither child custody, nor any reduction in child support from that mandated by law may be included in a prenuptial agreement because the agreement impacts people who are not parties to the agreement (i.e. the present and/or future children).

A prenuptial agreement can provide for property division, alimony, and payment of attorney fees in the event of a divorce, if the terms of not unconscionable either when entered into, or when actually applied upon divorce. A prenuptial agreement can also modify the community property rights of a couple in a community property state and can modify the rights of a surviving spouse at the death of a first to die spouse. A prenuptial agreement could also include a contract to include provisions in a will that survives after the death of the first to die spouse.

The provisions of prenuptial agreement related to property division, alimony, and payment of attorney fees in the event of a divorce can be drafted so that their terms of different when the couple have children than they are when the couple do not have children, so long as those provisions don't make the children worse off than they would have been in the absence of the agreement.

So, if the couple agree that should they divorce upon having had children, that 50% of their combined net worth will be placed in an irrevocable trust for the benefit of their children, so long as both spouses are not impoverished as a result, the couple could do that.

Often, both prenuptial agreements and separation agreements to settle divorce litigation, treat primary caretaker mothers of children in a marriage with traditional gender roles more generously in terms of alimony and the property division, than prenuptial agreements and separation agreements do in divorces where both spouses work and there are no children.

Also, a prenuptial that makes the prospect of a divorce less painful, may make a divorce that doesn't need to happen more likely, which also isn't necessarily in the child's best interests. But, a prenuptial agreement can't generally change the grounds for a divorce or condition the economic settlement arising out of a divorce on marital fault (e.g. having an affair).

The only exception to this is that three states (Arizona, Arkansas, and Louisiana) have a concept called "covenant marriage" which if elected when the couple marries, retains a fault based divorce regime for their marriage if they get divorced in the state where they are married, even though no fault divorce applies to people in the state who do not have covenant marriages. But, according to the same source: "Since its inception [in 1997 and shortly thereafter], very few couples [1% or less] in those states have married under covenant marriage law."

Like money spent on divorce lawyers means money spent on the child in the future.

This one doesn't make a lot of sense. Divorces are basically a zero sum game. Money spent on divorce lawyers isn't available to anyone. Also, as a practical matter, for minor children, money that benefits a child and money that benefits a parent of a minor child are not readily distinguishable.

For example, the the child and parent live in the same place and eat portions of the same meals that they prepare in that home, any money spent on rent, utilities, and food benefit both parent and child in a manner that isn't readily segregated. Also, harm to either parent's well-being arising from economic deprivation can negatively impact the child, and this indirect harm to the child through harm to one of the child's parents could easily outweigh the benefits of money being set aside for a child when the child reaches adulthood.

Furthermore, money spent on divorce lawyers can be indispensable to protecting a child's well-being. Often divorces are expensive because a parent is trying to protect their children from a bad situation. The notion the money spent on divorce lawyers is harmful to the children, while it could sometimes be true, is certainly not true in any blanket sense and doesn't solely benefit or harm the parents.

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