Minnesota Law Prohibits Couples from Including Child Custody or Support in Their Prenups and Postnups
Prenuptial and postnuptial agreements focus on financial matters, like protecting family wealth or a business interest. But we sometimes hear from clients who ask us to include provisions related to child custody and child support.
We understand the reasoning: You’re already making a legal document in the event of a divorce, so why not add this? Maybe you and your partner already agree on who would be better suited to have primary custody. Maybe it seems like including child custody and support matters in a prenup now could save you time in the future.
However, it’s important to know that Minnesota law prohibits doing this. Both prenuptial and postnuptial agreements are restricted from including provisions related to child custody and child support. Below, we discuss why, and we share how these agreements may still impact child custody and support arrangements.
Prenuptial and Postnuptial Agreements: What’s the Difference?
Under Minnesota law, a couple can enter into an agreement before or after they get married. The terms are just different.
Before marriage, the agreement is called a “prenuptial agreement,” which is also called an “antenuptial agreement.” (Lawyers will tell you that “ante” means “before” in Latin. The statute language uses “antenuptial.”) After marriage, the agreement is called a postnuptial agreement.
Minnesota Statutes Section 519.11 discusses both antenuptial and postnuptial agreements. It was recently amended by Chapter 101, Article 3, Section 1, during the 2024 Regular Session.
What Minnesota Statutes Say About Child Custody and Support
Before it was revised, Minnesota Statutes Section 519.11 explicitly stated that postnups could not legally address the matter of child support. However, it did not specify anything regarding child custody or support for prenups.
The amended language clarifies the law and spells out precisely what a prenuptial or postnuptial agreement can determine. The statute now clarifies that these are the items that may be agreed to in prenups:
- Each person’s right to marital and nonmarital property
- What will be provided for spousal maintenance
- Each person’s right to the estate of the other (as well as barring them from estates not secured to them)
Why Can’t a Minnesota Prenup Include Child Custody or Support?
Under Minnesota law, child support belongs to the child—not the parent. Therefore, it’s not for the parents to agree to in the postnuptial agreement.
As for custody, the way child custody is determined in Minnesota is by what is best for the child at the time of the divorce proceedings. A lot can change between a prenup and divorce. This allows custody to be determined by the situation as it is, not as the spouses thought it would be.
How a Prenup Could Impact Your Child Custody and Support Situation Anyway
While you can’t write child support into a prenuptial agreement, you can agree to other provisions. And these decisions can contribute greatly to your child’s (or future child’s) overall quality of life in the event of a divorce.
Spousal Maintenance
The amount of alimony (also called spousal maintenance) paid can impact your children. The income that formerly supported one household must now be divided to support two. A prenuptial or postnuptial agreement can make the division more fair.
For example, imagine that you put your career on hold to raise your family. Alimony can help you pay the bills and provide a stable life for your children, regardless of whether you receive child support.
Marital Home and Other Assets
When you get a divorce, the marital home is often one of the largest assets to be allocated. Dividing the proceeds of this or other assets can provide a fair division of finances. Plus, if one spouse gets the marital home and then later custody, it could provide some continuity and stability for any children.
If you didn’t set up alimony or other asset division in your prenuptial agreement, your children may be stuck in a less-than-desirable living situation—even if you or your spouse does receive some child support. It’s usually best to be proactive and plan for alimony or other division of assets, just in case.
In addition, the asset section of your prenup can address any familial property, heirlooms or other estate items. You can clarify that these will stay in the hands of the same family.
For example, let’s say you have one child from a previous marriage, and you own your family cabin. If you have a prenup, you can stipulate that the cabin stays with you, and not your new spouse, in the event of a divorce. If you do not have any more children, the cabin stays in your name, thereby ensuring it can eventually pass to your child.
Will the Court Enforce Child-Related Provisions in a Prenup?
If you do add child custody or child support matters to a prenuptial agreement in Minnesota, the court will probably choose to ignore them. You can, however, make sure you agree to other financial matters in a way that could ultimately benefit the children, even if they aren’t specifically mentioned.
You’ll want to make sure the court will enforce these financial provisions. The best way to do this is to consult with an experienced family law attorney who can draft a prenup that complies with Minnesota law. Your prenup attorney will make sure your agreement meets the necessary requirements in order to be enforceable under the law.
Get Answers to Questions About Prenups
Wondering if your prenup is enforceable? Considering how you can protect your children? White & Associates in Elk River helps clients with a wide range of family law matters, from prenuptial agreements through divorce, child custody and child support issues. We can help you and your family.
To talk with one of our lawyers about your prenuptial agreement, call us at 763-241-0477 or contact us online.
