3 Ways a Prenup Protects the Kids in Divorce

A prenuptial agreement can help protect children in a number of important ways – and these agreements can be reached before the family even has any children.

There are certain things you CAN’T do for kids in a prenuptial agreement…

  • You CAN'T make a binding agreement about custody. Someone once asked me if a prenup could make sure they get full custody in the event of divorce. Sorry, not possible!
  • You CAN'T make a binding agreement about child support or sharing the children’s expenses. You can’t agree, for example, that the lower-earning spouse won’t ever have to pay child support to the higher-earning spouse, or that the higher-earning spouse will be responsible for 100% of college tuition no matter what.

Actually, let me rephrase that. You could agree to these things in your prenuptial agreement, but the court wouldn’t consider it legally binding. Even in divorce, the agreements that parents reach about custody and child support can be modified down the road. That’s because the court always puts the children’s best interests first, and those interests are highly dependent on circumstances that can change over time.

But even with those limitations, there are still big ways a prenup protects children!

A prenup protects children from the emotional and financial costs of divorce litigation.

When I work with divorce clients, all of them have one thing in common: they don’t want to litigate their divorces in court. I’m one of only a handful of divorce attorneys in Massachusetts who don't litigate, and people tend to choose to work with me specifically for that reason.

There are many reasons for a couple to want to keep their divorce out of court, and those reasons are greatly exacerbated when there are kids in the picture.

#1 - Litigation breaks down communication between parents.

The moment you decide to put a decision in front of a judge, you become adversaries. You want one outcome; your spouse wants a different outcome.

Your attorneys have a professional obligation to make the strongest case possible to get you the outcome you want, which often means making a case against your spouse. This can take a tremendous toll on your relationship – sometimes to the point where you struggle to even be in the same room with each other!

When there are kids involved, effective communication is important for good co-parenting. If parents can’t talk with each other, they’ll have a hard time navigating questions of education, medical care, religion, and other important parental responsibilities – not to mention the day-to-day questions of transportation, activities, etc.

If a couple has kids and wants to preserve good communication for the children’s sake, in most cases, a litigated divorce is a very bad idea.

#2 - Exposure to parental conflict is bad for kids.

Conflict isn’t just bad for parents’ relationship with each other – it’s also bad for the children’s emotional wellbeing.

The conventional wisdom used to be that parents should stay married “for the kids’ sake.” That notion has since come under a lot of scrutiny, based on research suggesting that exposure to parental conflict is more harmful to children’s emotional wellbeing than living in a “broken” home.

Again, parents have a strong incentive to avoid litigation, to preserve good communication as much as possible and minimize the amount of conflict their children experience.

#3 - Litigation wastes money that could be spent on the children.

It’s no secret that divorce litigation is expensive. And given that 95% or more of litigated divorces settle short of trial, parents should think long and hard before spending tens of thousands of dollars on the litigation process, when that money could saved for the children instead.

Just how expensive is divorce litigation?

Because attorneys’ billing records are confidential, it’s hard to get precise numbers, but with divorce attorneys charging $200 to $600 (or more!) per hour, each spouse can easily expect to spend $15,000 or more on legal fees and other costs.

One survey by Nolo found that the typical divorce costs about $15,500 per person, and the cost went up to about $19,600 if the case went to trial. In higher-income areas like Boston, those numbers are going to be much higher!

That’s a lot of diapers. Or hockey lessons. Or college tuition. You get the picture.

A prenup can prevent those pitfalls before they happen.

With litigated divorce having potentially devastating consequences — both emotionally and financially! — for parents and their children, a prenuptial agreement can help prevent those consequences by significantly reducing the opportunities for litigation.

A well-drafted prenuptial agreement can prevent litigation over...

  • Bank accounts
  • Retirement accounts
  • Real estate
  • Business interests
  • Inheritances
  • Debts
  • etc.

As for your incomes, if you’re confident that you’ll both be financially self-sufficient, you can also agree that neither of you would have to pay alimony (i.e., spousal support, which is different from child support) to each other, eliminating another very common source of conflict in divorce.

In short, a solid prenuptial agreement can take the vast majority of opportunities for litigation off the table, protecting the children from the huge emotional and financial costs of divorce litigation – even if there aren’t even any kids in the picture yet!