Determine who Gets the Children in Case of Divorce with a Contract before Marriage
All too often, divorces turn into ugly wars of the roses. The most popular topic of dispute is the children. Whether and how you can contractually determine before marriage who will get the children in case of divorce, you can find out here on Finance & Law | Austria.
Even if it may seem inappropriate before the wedding, in a phase of highest infatuation, to talk about the consequences of separation, it is not. On the contrary, a prenuptial agreement represents a sensible means of joint life planning that provides security to both parties.
Therefore, more and more couples are concluding a prenuptial agreement before marriage.
The prenuptial agreement is a contract concluded between spouses before or during marriage to regulate legal consequences in connection with the marriage. In the prenuptial agreement, especially the statutory regulations of divorce consequences, but also the legal consequences of matrimonial property law and inheritance law can be contractually modified.
Dr Mariella Stubhann MPM MBAFinanz & Recht „Was liegt näher, als auch die Frage der Kinder zu regeln?
Bei welchem Elternteil sollen die Kinder im Fall der Scheidung wohnen? Wer hat das Obsorgerecht? Wie hoch hat der Unterhalt zu sein?“
Common Topics in a Prenuptial Agreement
When designing the prenuptial agreement, the spouses are very free. Typical prenuptial agreements include the following topics:
- Data of the spouses
- List of any other contracts between the spouses
- List of existing assets or debts of the spouses
- Allocation of future assets created during the ongoing marriage
- Regulations of one spouse’s participation in the other spouse’s earnings
- Regulations for the case of divorce
- Regulations for the case of death
- Choice of law clause
- Legal advice
Regulations for the case of divorce
Regulations for the case of divorce are the main motivation and thus the core topic of most prenuptial agreements. The following topics are at the center:
- Regulations regarding the marital home
- Division of marital property
- Division of assets or debts
- Regulations concerning the children
- Alimony
Regulations concerning the children
Experience shows that in divorces, children are often at the center of disputes between ex-partners. Therefore, nothing is more obvious than making sensible arrangements regarding the children in the prenuptial agreement.
In particular, the following points should be considered:
- Residence of the children
- Joint or sole custody
- Amount of child support payments
Dr Mariella Stubhann MPM MBAFinanz & Recht „ACHTUNG: Vereinbarungen über diese Punkte können in den Ehevertrag aufgenommen werden. Die Rechtsprechung betrachtet diese Regelungen jedoch als unverbindlich.“
These are therefore mere declarations of intent that are not legally enforceable in case of divorce. At best, these agreements serve as an argument in court for the ex-partner who wants to rely on the agreement. Nothing more.
Protection of Children and Parents
This serves to protect the children and the parents.
In regulations concerning custody and child support, the child’s well-being always comes first. The court does not necessarily adhere to the parents’ ideas, but examines in each case what is ideal for the children.
Furthermore, no parent should be susceptible to blackmail for financial reasons to give up rights to the children in case of divorce. This makes it impossible for particularly wealthy spouses to pressure the other spouse and present them with the choice: “Money or children“.
