Premarital Agreements and Child Support
Friday / June 08, 2007
Child support cannot be waived by a premarital or prenuptial agreement.
Most, if not all, states allow couples about to marry to enter into prenuptial agreements. Similarly, spouses often enter into postnuptial agreements. Prenuptial agreements have become so common that the National Conference of Commissioners on Uniform State Laws has drafted a Uniform Premarital Agreement Act. The majority of states has adopted this Act.
Premarital agreements become effective upon marriage. They are enforceable under the Act unless the spouse trying to avoid a premarital agreement can show that he did not execute the agreement voluntarily. Alternatively, a premarital agreement is unenforceable if the agreement is unconscionable and that, before executing it, a spouse was not provided a fair and reasonable disclosure of the property or financial obligations of the other party, did not waive any right to disclosure, and did not have, or reasonably could not have had, an adequate knowledge of the property and financial obligations of the other party.
But premarital agreements cannot be used to establish the amount of child support on divorce or to waive child support. In fact, the Uniform Premarital Agreement Act specifically says: "The right of a child to support may not be adversely affected by a premarital agreement."
Why should this be? Can't adults about to get married make an agreement about how much child support should be paid on divorce? If the child support were considered to belong to the ex-spouse who would receive it, then perhaps the amount could be limited by a premarital agreement. But child support is paid for the benefit of the child, not the parent, and the parent has no right to waive or limit the child's rights. Even if a premarital agreement limits or waives child support, a court will have the power to void that provision.
Premarital agreements become effective upon marriage. They are enforceable under the Act unless the spouse trying to avoid a premarital agreement can show that he did not execute the agreement voluntarily. Alternatively, a premarital agreement is unenforceable if the agreement is unconscionable and that, before executing it, a spouse was not provided a fair and reasonable disclosure of the property or financial obligations of the other party, did not waive any right to disclosure, and did not have, or reasonably could not have had, an adequate knowledge of the property and financial obligations of the other party.
But premarital agreements cannot be used to establish the amount of child support on divorce or to waive child support. In fact, the Uniform Premarital Agreement Act specifically says: "The right of a child to support may not be adversely affected by a premarital agreement."
Why should this be? Can't adults about to get married make an agreement about how much child support should be paid on divorce? If the child support were considered to belong to the ex-spouse who would receive it, then perhaps the amount could be limited by a premarital agreement. But child support is paid for the benefit of the child, not the parent, and the parent has no right to waive or limit the child's rights. Even if a premarital agreement limits or waives child support, a court will have the power to void that provision.