Can You Include Child Custody and Support Terms in a New York Prenuptial, Postnuptial or Separation Agreement?

Romantic CoupleNew York Domestic Relations Law § 236 (B)(3) sets forth that prenuptial and postnuptial agreements are valid and enforceable if they are in writing, the parties subscribe to them, and they are proven in the way required to entitle a deed to be recorded. The difference between these types of agreements is that prenuptial agreements are entered into before marriage, while postnuptial agreements are entered into after marriage.

The agreement can include, among other things, provisions for the custody, care, maintenance, and education of the parties’ children, subject to Domestic Relations Law § 240. § 240 provides that the court has the discretion to enter custody and support orders as justice requires, based on the circumstances of the case, the parties, and the child’s best interests.

In other words, prenuptial and postnuptial agreements in New York can’t conclusively establish child custody or child support. Postnuptial agreements, made after a child is born, may be influential when they address education, child support, and care. However, judges make a final determination on child custody and support based on the child’s or children’s best interests. The terms of an agreement are only enforced if the terms serve a child’s best interests and needs at the time of the divorce.  A separation agreement, however, which is in proper form, can deal with child custody and child support terms.  The difference between a separation agreement and a postnuptial agreement in this context being that either when the separation agreement is made or very soon thereafter the parties must being living apart and intend to do so.   Of course custody, parenting time and child support terms are properly included and should be part of a stipulation of settlement settling a divorce.

In a 2009 New York Supreme Court case, Einhorn v. Einhorn, the court explained that when a postnuptial agreement is challenged, the agreement must be viewed in its entirety and under the totality of the circumstances. The court can’t rewrite an agreement while claiming it is simply interpreting the contract. Specifically, it can’t write into a contract new conditions by adding or removing terms, and it can’t interpret the contract such that it would distort the evident meaning of the contract.

The Child Support Standards Act (CSSA) sets forth basic child support obligations. Under Domestic Relations Law § 240(1-b)(h), an agreement with support provisions that deviate from those obligations has to specify how much the obligation would have been under the CSSA and explain why the parties deviated from the guidelines. In the Einhorn case, the defendant argued that the child support provisions in the agreement failed to specify the income of the parents, the amount of the obligation that would be due under CSSA, and why the parents had deviated. Accordingly, the court set these provisions aside, although it did not vacate the whole agreement.

The parties in Einhorn had agreed to consult with each other on health and education. However, they also agreed to allow the children’s school principal to recommend a mediator if there were disagreements about education and to allow the children’s pediatrician to recommend a mediator if there were disputes about health issues. Either party could ask the court to resolve the disputes if an agreement couldn’t be reached.

Accordingly, the court upheld a portion of the agreement that required the plaintiff to pay the children’s orthodontic bills, but it allowed the plaintiff to have a hearing to determine whether the amount of money charged was reasonable. Similarly, the amount of tuition that the plaintiff was obliged to pay was also to be determined at a hearing.

If you need to draft a prenuptial agreement, or need guidance on child custody and child support matters, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family lawyer and mediator.

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