She wants me to sign a prenuptial that gives her full custody of a child in the case that i abuse alcohol or drugs. Also she wants all assets to remain separate even though I pay half the bills on the current home we live in. Does this make sense?
Her name is on the current home mortgage
David R HartwigFamily Law AttorneySalt Lake City, UT ·
Generally, custody arrangements cannot be 100% controlled by a prenuptial agreement -- the best interests of the child is what controls. So the court could have power to set aside the agreement.
You really need to consult with an experienced family law attorney on this issue, and the financial issues.
Pre-nuptials regarding children cannot prevent judicial determinations of best interests of a child later. It is contrary to public policy. It also is like making a prospective determination of a child's best interests without regard to the facts and evidence that exists when the determination must be made. Such a pre-nuptial term is void as contrary to public policy. And how would you begin to write such terms that cover all future facts. You can agree to character of property in advance per the Texas Constitution and Texas Family Code. If you do not agree, you are free not to sign the agreement or to be married without such an agreement.
Your prenup will not control any future child custody disputes. For the rest of your question, you will need to bring your proposed prenuptial agreement to a local family lawyer for review. You can search for one on and there are plenty of good options. Without knowing your financial situation, it is difficult to provide an answer on if the proposed prenuptial agreement makes sense for you.
Issues about children are decided on the child's best interest when the decision is made, not in advance. Your fiancee's assumption about you abusing drugs or alcohol assumes she will not do the same, or worse. That part is not enforceable. It is evidence that you once thought she would be a good choice for custody, but that means little.
The property part of the prenup must be negotiated. If you don't like her proposal, make a counter-proposal. Ultimately, if you cannot agree, either marry without a prenup or don't marry. Prenups are enforceable in Texas so do not sign if you do not agree.
The provisions about the child would not be enforceable, but they don't belong in a prenup anyway.
Some people do decide to keep assets and debts separate. It's a choice.
I would suggest counseling together before considering marriage or a prenup. Plan how to avoid and work through these issues instead of planning how to bail out.
Please do not sign any prenup without having your own separate lawyer review it with you to explain the pros and cons.
