Are You Going Through a Divorce and Share Minor Children?

Nothing complicates a divorce as much as having children with your spouse. Child support, child custody, and the division of marital property are among the most contentious issues people go through when divorcing their spouse.

You may think that your prenuptial agreement was all-inclusive enough to outline how child support and even custody will be settled in the case of divorce, but does it really?

Understanding this and other aspects of the divorce process is integral to ensuring that it is fair and that your children’s best interests are at the forefront. Call 817-854-1651 to schedule a free consultation with a family attorney who wants just that for you and your divorce.

What Is a Prenuptial Agreement and What Can It Cover?

A prenuptial agreement, often shortened to just “prenup,” is a legally binding contract entered into by two individuals before they get married. It establishes how financial matters will be handled during the divorce and in the event of a divorce or death. In Texas, prenuptial agreements are governed by the Texas Uniform Premarital Agreement Act.

Texas is a community property state, which means a prenup allows couples to override default rules that would otherwise split all marital property equally upon divorce. Instead, a prenup offers clarity, control, and financial protection, especially for individuals entering the marriage with substantial assets, business interests, or children from prior relationships.

Under Texas law, a prenuptial agreement can address:

  • Division of property: You and your spouse will be able to define what is considered separate vs. community property and how property will be divided in case of divorce.
  • Spousal support: The prenup can waive or set limits on spousal support, provided the waiver is not unconscionable at the time of enforcement.
  • Debt responsibility: You and your spouse can assign responsibility for debts acquired before or during the marriage to avoid disputes later.
  • Management of property: A prenup allows you to outline who has the right to manage or control certain assets during the marriage.
  • Estate planning coordination: Your agreement can clarify inheritance rights and coordinate with wills or trusts.

To be legally enforceable in Texas, your prenuptial agreement must be in writing, signed voluntarily by both parties, and based on fair and reasonable disclosure of assets and liabilities.

Can A Prenup Really Not Cover Child Support Obligations?

This is a common question, and the short answer is no. Under Texas law, prenuptial agreements cannot legally limit, waive, or predetermine child support obligations. While a prenup can cover many financial matters between spouses, as seen above, child support is treated differently because it is considered a right belonging to the child, not the parents.

That means that even if both you and your spouse agree in writing that one parent won’t pay child support or will pay a reduced amount, the court will not enforce that provision. Child support is always determined based on the best interests of the child at the time of divorce or separation, not based on private agreements made in advance.

Courts in Texas follow child support guidelines set forth in the Texas Family Code, and judges have discretion to adjust those amounts based on factors like income, parenting time, and the child’s needs.

Cutrer Law is ready to help you understand what can and can not be included in your prenuptial agreement. If you have a child or plan to, we will ensure your prenup is drafted properly without including terms that could be thrown out in court, providing a more predictable divorce should one become unavoidable.

What Happens If You Are Going Through a Divorce and Your Prenup Includes a Child Support Provision?

If you are getting divorced in Texas and your prenuptial agreement includes provisions about child support, the court will almost certainly disregard those terms. 

When a prenup includes language that attempts to:

  • Waive child support entirely
  • Set a fixed or reduced amount
  • Shift all support responsibilities to one parent

…the court will likely strike that portion of the agreement while allowing the rest of the prenup to remain enforceable, provided those sections meet all legal requirements

However, including unenforceable child support terms can create confusion and costly delays in the divorce process. It may trigger legal challenges, increase litigation costs, or even lead to disputes over other parts of the agreement.

When creating a prenuptial agreement, Cutrer Law will ensure you are making a legally sound contract that doesn’t include provisions that will create legal issues in the future. If you feel like your relationship is heading for divorce, a Cutrer Law divorce attorney will be able to examine your existing prenup, if you have one, and disclose any potential legal pitfalls so that you don’t run into a nasty surprise in the future.

Do You Need a Lawyer When Creating a Prenuptial Agreement?

If you are looking up this specific section of family law, you have likely run into those “legal” websites that “do it all” for a cheap price. Those websites won’t take a custom approach to your legal situation, the way Cutrer Law will. A Cutrer Law Family attorney will ensure your prenup covers the provisions specific to your circumstances while avoiding sections that could cause legal trouble for you in the future.

Cutrer Law offers a free consultation where you can speak with a family lawyer, ask your important questions, and learn about your legal rights. Don’t wait, call 817-854-1651 to schedule your free consultation today.