While antenuptial and postnuptial agreements permit spouses and spouses-to-be to agree to divide their assets or make decisions regarding spousal maintenance, agreements with respect to child custody, child support or parenting agreements may not be enforceable, depending upon whether a court finds them to be in a child’s best interest. To determine whether such agreements are enforceable, a court will want to make sure that these issues are decided in a way that is in the child’s best interest.
Antenuptial and postnuptial agreements are contracts and thus must meet all the legal requirements of a valid contract. In addition, the agreements must have been procedurally fair when they were signed. For example, the spouse who is giving up rights to property to which they would otherwise be entitled must have had sufficient time to review the agreement and consult an attorney. It addition, the agreement must be substantively fair at both the time it was signed and at the time a party seeks to enforce it. If circumstances have changed between the signing of the agreement and the time a party seeks to enforce it, such that the agreement seemed fair when signed but later seems unjust to one party, a court will not enforce it. Because circumstances are unpredictable and may change at any time, it’s impossible to guarantee that antenuptial and postnuptial agreements will be completely enforceable. If a court finds any part of the agreement to be unfair at the time a party seeks to enforce it, the court will not enforce the provision it finds to be unfair.