The most notable exceptions are child-related matters, including child custody and child support. In New Jersey the courts hold that a child’s best interest can only be determined at the time a child and support order is sought, or a modified require is made, not beforehand. If spouses-to-be make an agreement about yet-to-be-born children and then divorce, there is a risk that whatever agreement they came to before marriage would not be in the best interest of the child.
If a prenuptial agreement called for one parent to retain sole custody, but that parent was determined to be unfit at the time that custody was sought, it would create another layer of legal wrangling. It is for this reason that the courts will not allow for it.
In New Jersey, child support is ordered in the name of the child, not the adult parent. It’s considered outside legal bounds to have an agreement between two parties to include stipulations for a third party, even when that third party is the couple’s child.
Bari Zell Weinberger is the owner and managing partner of Weinberger Law Group in New Jersey. She is Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney.