How to Include Adopted Children in a Prenup

Single parent adoption is a fairly recent phenomenon. In the past, adoption agencies wouldn’t even consider placing a child unless the home guaranteed a mother and a father. But as single parenthood has become a reality for more and more natural parents, agencies have changed their thinking. Today, most adoption services view placement with one loving parent in a stable home as better for the child than life in foster care or an institution. This means that more single professionals who haven’t found an appropriate life partner can still give their love to a child. And why not? If one of your goals in life is to be a parent, and there are needy children who can benefit from your support, nurturing, guidance, and companionship, why should you put that dream on hold until you find the perfect life partner, who might not even exist?

But, ironically, many individuals who take the initiative to adopt, thereby becoming single parents, soon find someone to marry. In most cases, these adoptive parents are mature individuals who’ve been around the block a couple of times. They know that marriages do not always work out. If they are professionals, who have accumulated substantial wealth which, they will bring to the marriage, they know they should protect their interests with a prenuptial agreement. But the question becomes, “Can I also use a prenup to protect my adopted child?” The answer is yes.

How the Law Treats Children in a Divorce

When parents divorce, they have a legal obligation to support the children of the marriage. But when you have a child who is not your spouse’s child, that spouse has no duty to pay support. Unless your spouse adopts your child, the court will not order child support. Perhaps throughout your marriage, your spouse will come to love your child and want to affirm that relationship through adoption. However, you cannot count on that happening. As you contemplate marriage, you must understand that your adopted child will be your sole financial responsibility if you divorce. For this reason, you must take steps to protect your personal finances.

Using a Prenup to Secure Your Separate Property

In divorce, there are two kinds of property: separate property, which each spouse gets to keep, and marital property, which gets divided, either 50-50 according to community property law or based on fairness in states like New York that employ equitable distribution. The key to securing your finances for the future support of your adopted child is to keep as much as you can out of the marital pool. A prenuptial agreement allows you to:

  • Designated property you are bringing to the marriage as separate
  • Declare that all wealth derived from your separate property will be separate property
  • Declare that any inheritances you receive during the marriage will be separate property

Of course, stating this in the contract is only the beginning. You must also treat your separate property as though it were separate. If you simply toss income from your separate property into a common checking account, no court is going to believe you intended to keep it separate or take the time to parse out the payments.

Practical Example: A Closely Held Business

Suppose you own a small business, and you are about to get married. Your prenup should state that your business is your own separate property, and your spouse-to-be has no ownership interest. You should also state in your prenuptial agreement that in the event of your death, your adopted child is to inherit the business. Your will should also reflect this intention. But after your wedding, you have to walk the walk by keeping this business separate from your marital estate. This means you must:

  • Keep separate bank accounts for the business
  • File taxes on the business separately from your spouse
  • Document any marital funds used to support the business as loans and create a mechanism to repay your marital estate
  • Pay market rate for services to your spouse for any contributions to the operation of the business

Mixing the business account with marital finances causes "commingling," which can lead a court to conclude that you treated your business as an asset of the marital estate despite statements to the contrary.

All accounts connected to the business should list your adopted child as the beneficiary.

What About Support in a Premarital Contract?

Generally speaking, spouses are prohibited from including child support in a marital contract. This is because child support is the right of the child, so the parents are not empowered to barter it away. But courts will often enforce agreements on child support that do not compromise the child's rights and are in the child's best interests. Such agreements usually bind a party to pay more than they would be legally obligated to. This is not unusual for high net-worth couples whose income exceeds the maximum of state child support guidelines. However, these are parents who have a legal obligation to pay some level of support and are also emotionally invested in their own flesh and blood. A child who is not their own by birth or adoption is a very different matter. The chances are slim to none that you can persuade your prospective spouse to promise support for your adopted child if you get divorced.

However, you might be able to negotiate an alimony settlement that could help you support yourself and your child, at least in the short term. If you and your spouse anticipate that you will put your career on hold upon marriage, while you tend to the home and raise your child, your prenup should contain some protection, such as rehabilitative alimony. Rehabilitative alimony is support for a time, usually two to three years, that a dependent spouse would need to become self-supporting. This contingency would ensure that you and your adopted child do not experience undue financial hardship in the event of a divorce. This is especially important during the child’s tender years, when an adoptive parent must prioritize the child above work outside the home.

There are other means of protecting the financial interests of your adopted child, such as placing your separate property in a trust for your child’s benefit. The key to accomplishing your goals for your child is advanced consultation and planning with a knowledgeable attorney. You should speak to a lawyer who is experienced in family law as well as estate planning to get the trustworthy advice you need to make a fully informed decision.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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