Is There a Child Support “Loophole” in Premarital Agreements?

Premarital agreements allow individuals to make agreements about their property rights and even with regard to future spousal support, although the latter involves complications and special considerations related to enforceability.  What has always been clear is that parties cannot make agreements about child support (or child custody) in a premarital agreement.  The law is clear that parents (or future parents) have no right to negotiate or give away a child’s right to support.

If a woman gets pregnant and has baby by a man who is a higher wage earner or has more wealth than she, then she will receive child support for that child.  There is no agreement which can prevent this result.  Putting aside the discussion of the man’s role in the resulting pregnancy (including lack of any precautions for prevention), child support will be ordered.  The very newsworthy cases on high child support orders involve sports stars.  A recent article about Michael Jordan discusses the fact that, despite having a purported “ironclad” premarital agreement with his new wife, his wealth likely cannot be protected from a child support order should they later divorce after having one or more children together.  I suppose this is a “loophole” in the premarital agreement, and one every breadwinner needs to be aware of.

In some states protections for the breadwinner may exist, such as trust accounts implemented to assure the child and not the mother is benefitting from the child support; but this is not the case in California.  My recent blog discussed this situation and how the breadwinner might be able to minimize the effect of the current state of the law in California.

It is highly unlikely the laws will ever change to allow people to reach agreements in premarital agreements concerning child support.  Therefore, it is important for the breadwinner (often the man) to know this fact and make his decisions accordingly.  The law will always protect the child, which for now also allows the parent receiving the support to benefit from that support absent agreements to the contrary, such as a trust for the children or the payment of the children’s expenses directly to the provider of services.