Postnuptial agreements give married couples in Asheville the opportunity to redefine property rights, spousal support, and financial responsibilities after the wedding. For some families, this legal clarity comes at a time of transition—building a business, planning for an inheritance, navigating a reconciliation. But when children are involved, the questions become more sensitive. Many couples want to know: can we include child-related provisions in our postnup?
The short answer: yes, you can—but only to a point. North Carolina law does not allow parents to predetermine custody or waive child support in a postnup. Those issues belong to the courts. But there are other ways to address child-related concerns. A well-drafted postnuptial agreement can still include important provisions about parenting roles, education planning, financial support, estate goals, and household structure—as long as those terms don’t interfere with a court’s authority.
An experienced Asheville prenup lawyer helps couples walk that line carefully. Whether you’re planning for a blended family, resolving issues after conflict, or simply trying to clarify expectations, the way you handle children in a postnup matters. This article explores what’s allowed, what isn’t, and how to craft enforceable agreements that put your children—and your legal rights—first.
Understanding the Legal Framework in North Carolina
North Carolina courts have exclusive jurisdiction over child custody and child support determinations. That means no private agreement—not even a postnup—can override a judge’s ability to decide what’s in the best interest of the child.
But that doesn’t mean child-related provisions are off limits entirely. A postnup can include certain child-focused terms, especially those involving financial support or estate planning, as long as they:
- Do not predetermine custody or support
- Do not waive the child’s legal rights
- Do not limit the court’s discretion
- Are not contrary to public policy
In practical terms, that means postnups cannot control parenting time, deny child support, or bind future custody decisions. But they can establish shared values, financial planning, and support frameworks that protect your children if the marriage ends.
An Asheville prenup lawyer helps separate what’s legally binding from what’s merely informative or aspirational.
What You Cannot Include in a Postnup About Children
1. Custody Arrangements
Postnups cannot predetermine which parent will have custody of the children after separation or divorce. North Carolina courts decide custody based on the child’s best interests at the time of the dispute—not based on agreements made years earlier.
Even if both parents agree today that one parent should have full custody, that clause will not be enforced.
2. Parenting Time Schedules
You cannot enforce a visitation schedule in a postnup. The court determines the parenting plan based on current circumstances, needs, and the child’s welfare—not on contractual terms.
3. Waiver of Child Support
Parents may not waive a child’s right to financial support. Child support belongs to the child—not the parent—and cannot be eliminated or pre-set in a postnup.
4. Restrictions on Relocation or Life Decisions
Attempts to restrict a future move, assign decision-making for medical or educational choices, or control the child’s lifestyle through a postnup are likely to be struck down.
An Asheville prenup lawyer drafts agreements that respect the court’s role in protecting the rights of children.
What You Can Include in a Postnup About Children
While the court retains control over custody and support, there are still important child-related provisions you can include:
1. Agreements to Collaborate in Parenting
You can include general language expressing mutual commitment to co-parenting, attending important events, and sharing parental responsibility. While not enforceable as legal mandates, these clauses establish intent.
Example:
- “The parties agree to communicate in good faith about all major decisions regarding the education, health, and welfare of their children.”
2. Educational Expense Planning
While child support is subject to court oversight, parents can still agree on how they intend to handle education costs beyond standard support.
Example:
- “The parties agree to contribute equally to any private school tuition, extracurricular activities, or college-related expenses for the children, provided their financial circumstances allow.”
These provisions may not be enforceable in a custody action, but they provide helpful structure in settlement negotiations.
3. Life Insurance for Child Support Protection
A postnup can require one or both parents to maintain life insurance for the benefit of their children.
Example:
- “Spouse A agrees to maintain a term life insurance policy in the amount of $250,000 naming the minor children as beneficiaries through a trust.”
This ensures continued financial support if a parent dies before the child is grown.
4. Inheritance Planning
A postnup can include estate planning terms that protect children’s inheritance rights—especially important in blended families.
Example:
- “In the event of Spouse A’s death, Spouse A agrees to preserve the children’s rights to inherit specified real estate as outlined in Exhibit A.”
These provisions coordinate with wills and trusts to create consistency.
An Asheville prenup lawyer ensures these estate clauses are drafted with proper legal safeguards.
Blended Families and Stepchildren
Postnups are particularly useful when spouses are raising children from previous marriages or relationships.
They can:
- Allocate financial responsibilities between biological and stepparents
- Preserve assets for biological children
- Waive elective share rights that could interfere with stepchild inheritances
- Clarify roles without creating binding custody terms
Example:
- “The parties agree that Spouse B shall have no financial obligation for the support or education of Spouse A’s child from a previous relationship, unless otherwise agreed in writing.”
While such clauses are not enforceable in family court, they reduce future misunderstandings.
An Asheville prenup lawyer structures these agreements in alignment with your estate and custody plans.
Addressing Special Needs and Long-Term Support
For families with a special needs child, a postnup can include provisions about:
- Future guardianship
- Creation of a special needs trust
- Division of caregiving responsibilities
- Continuation of benefits or services
While courts retain authority, a thoughtful postnup can shape how those discussions are framed and resolved.
Example:
- “The parties agree that they will consult jointly on all major decisions regarding care, placement, and treatment of their child, and that any trust established for the benefit of the child will be funded equally from marital assets upon divorce.”
An Asheville prenup lawyer collaborates with estate planners and care advocates to ensure these provisions align with legal requirements.
Drafting Tips for Child-Related Postnup Provisions
1. Use Clear Language
Avoid vague promises like “We will always prioritize the children.” Use specific, objective terms where possible.
2. Avoid Punitive Measures
Do not tie parenting outcomes to marital misconduct. Courts are unlikely to enforce provisions that assign child-related consequences for infidelity or other faults.
3. Separate Binding and Non-Binding Clauses
Use clear headings and formatting to separate legal obligations from aspirational goals.
4. Focus on Financial Planning
Structure provisions around financial preparedness, education, and estate planning—not custody or control.
5. Include Coordination With Other Documents
If the postnup references a trust, life insurance policy, or will, make sure those documents are also updated.
An Asheville prenup lawyer uses a comprehensive drafting approach to keep agreements enforceable and effective.
What Happens in Court If a Child-Related Clause Is Challenged?
If a dispute arises and a child-related clause in a postnup is presented to the court, the judge will evaluate:
- Whether the clause attempts to limit the court’s jurisdiction
- Whether it infringes on the child’s best interests
- Whether it reflects fair financial planning or unlawful waiver
- Whether it should be used as evidence of intent, even if not enforced
Most of the time, the court will strike unenforceable custody or support clauses but allow financial planning language to inform other decisions.
An Asheville prenup lawyer prepares for these scenarios by building fallback language and clarity into every agreement.
How to Talk to Your Spouse About Child-Related Terms
The goal isn’t control—it’s clarity. When discussing child-related clauses:
- Emphasize shared values and planning, not mistrust
- Frame the agreement as a way to protect the children, not restrict the other parent
- Focus on practical concerns: college, medical care, inheritance
- Be open to negotiation and revision
- Keep the conversation focused on the future—not the past
An Asheville prenup lawyer can act as a neutral drafter or represent one party to ensure the process remains respectful and productive.
When to Revisit the Postnup
As your children grow, circumstances change. It’s smart to update your postnup when:
- A child enters a new school
- One parent changes jobs
- A new child is born or adopted
- A child receives an inheritance
- The couple moves to a different state
Postnups can be amended at any time if both parties agree in writing.
An Asheville prenup lawyer can update your agreement to reflect your family’s evolving needs.
Frequently Asked Questions
Can we decide custody in a postnup in North Carolina?
No. Custody decisions must be made by the court at the time of separation, based on the child’s best interest. A postnup cannot override this authority.
Can we waive child support in a postnup?
No. Child support is the right of the child and cannot be waived or limited by the parents in a private agreement.
Can we agree to pay for private school or college in the postnup?
Yes. These provisions are often included and enforceable as financial planning tools, even if not court-mandated.
Can a postnup protect inheritance for our children?
Yes. Postnups can coordinate with estate plans to ensure children, including those from previous marriages, receive intended assets.
Are child-related provisions enforceable in postnups?
Only those related to financial planning and estate issues. Custody and support clauses are not enforceable but may provide useful context.
Can we include moral or religious guidelines for raising children?
You can include them, but they are not enforceable. Courts will not impose specific religious or moral conditions.
Do both parents need lawyers for the postnup to be valid?
It’s not required, but it’s highly recommended. Courts are more likely to enforce the agreement when both spouses have legal representation.
Can a postnup be updated after we have more children?
Yes. Postnups can be amended by mutual agreement to include additional children or changed circumstances.
Will the court use our postnup to guide custody decisions?
Not directly. But the court may consider it as evidence of the parents’ past intent or financial preparedness.
What if my spouse won’t agree to child-related terms?
Then those terms can’t be included. Postnups require mutual consent. You can still use estate planning or court petitions to pursue your goals.
The McKinney Law Group: Protecting What Matters in Your Asheville Marriage
From reconciling after separation to restructuring finances, postnups provide a clean path forward. We help Asheville clients create postnuptial agreements that reflect today’s realities and tomorrow’s plans.
Call 828-929-0642 or email [email protected] to start the conversation.