Prenuptial Agreements: What They Cover and How to Get One

Prenuptial agreements — commonly called "prenups" — have long carried a stigma. Many people associate them with wealthy couples planning for divorce before the marriage even begins. In reality, prenuptial agreements are practical legal tools that can protect both partners, clarify financial expectations, and make a difficult situation easier to navigate if the marriage does end.

With nearly 40 to 50 percent of marriages in the United States ending in divorce, a prenuptial agreement is not pessimistic — it is realistic. This guide explains what prenuptial agreements are, what they can and cannot cover, how to create one that will hold up in court, and why every couple should at least consider one.

What Is a Prenuptial Agreement?

A prenuptial agreement is a legally binding contract between two people who are planning to marry. It is signed before the wedding and takes effect upon marriage. The agreement typically addresses how assets, debts, and other financial matters will be handled during the marriage and in the event of divorce or death.

Prenuptial agreements are governed by state law, and the requirements for a valid prenup vary from state to state. However, the Uniform Premarital Agreement Act (UPAA), which has been adopted in some form by the majority of states, provides a common framework. A closely related model law, the Uniform Premarital and Marital Agreements Act (UPMAA), has been adopted by a smaller number of states and provides additional protections.

What a Prenuptial Agreement Can Cover

Prenuptial agreements can address a wide range of financial and property issues. Common provisions include:

• Separate property protection: Identifying which assets each partner brings into the marriage and confirming that those assets will remain separate property in a divorce. This is especially important for people who own businesses, real estate, retirement accounts, or inherited assets before marriage.
• Division of marital property: Specifying how property acquired during the marriage will be divided if the couple divorces. Without a prenup, state law determines the division — either through "equitable distribution" (fair but not necessarily equal) or "community property" (generally 50/50) depending on the state.
• Debt allocation: Clarifying who is responsible for debts each partner brings into the marriage and debts incurred during the marriage. This can protect one partner from being held liable for the other's student loans, credit card debt, or business debts.
• Spousal support (alimony): Setting terms for spousal support in the event of divorce, including the amount, duration, and conditions. Some prenups waive spousal support entirely; others establish a formula based on the length of the marriage.
• Business interests: Protecting a business that one partner owns or co-owns from being divided in a divorce. This can prevent a divorce from disrupting or destroying a business.
• Inheritance and estate planning: Coordinating with estate plans to protect inheritance rights, especially in situations involving children from prior relationships.
• Financial responsibilities during marriage: Addressing how household expenses, savings, and investments will be managed during the marriage.

A prenuptial agreement is not just about planning for divorce. It is a framework for financial transparency and communication within the marriage. Couples who discuss finances openly before marriage tend to have stronger relationships and fewer financial conflicts.

What a Prenuptial Agreement Cannot Cover

There are important limitations on what a prenup can include. Courts will not enforce provisions that address:

• Child custody and visitation: A prenup cannot predetermine custody arrangements. Courts always decide custody based on the best interests of the child at the time of divorce, and parents cannot contractually waive the court's authority over this issue.
• Child support: Parents cannot agree to waive or limit child support in a prenup. Child support is the right of the child, not the parent, and courts will set support based on state guidelines regardless of what a prenup says.
• Illegal provisions: Any provision that requires illegal activity or violates public policy is unenforceable.
• Personal (non-financial) matters: Some couples attempt to include "lifestyle clauses" governing things like household chores, weight gain, frequency of intimacy, or how often in-laws can visit. While these clauses are sometimes included, they are generally unenforceable and can undermine the credibility of the entire agreement.
• Unconscionable terms: A prenup that is grossly unfair to one party may be invalidated by a court. For example, a prenup that leaves one spouse with nothing after a 20-year marriage while the other retains millions in assets may be deemed unconscionable.

Requirements for a Valid Prenuptial Agreement

For a prenup to be enforceable, it must meet certain legal requirements. While these vary by state, the following elements are generally required:

1. Written and signed: A prenuptial agreement must be in writing and signed by both parties. Oral prenuptial agreements are not enforceable.
2. Voluntary execution: Both parties must sign the agreement voluntarily, without coercion, duress, or undue pressure. A prenup presented the night before the wedding with an ultimatum to "sign or the wedding is off" is much more likely to be challenged and potentially invalidated.
3. Full financial disclosure: Both parties must provide complete and honest disclosure of their assets, debts, income, and financial obligations. A prenup obtained through fraud or concealment of assets can be thrown out.
4. Independent legal counsel: While not legally required in every state, having each party represented by their own attorney significantly strengthens the enforceability of the agreement. If only one party has an attorney, courts may view the agreement more skeptically.
5. Fair and reasonable terms: The agreement must not be unconscionable — grossly unfair — at the time of execution. Some states also consider whether the agreement has become unconscionable by the time of enforcement.
6. Proper execution: Some states require witnesses or notarization. Check your state's requirements.

Timing matters. Ideally, a prenuptial agreement should be discussed and finalized well before the wedding — at least several weeks to a few months in advance. An agreement signed under time pressure, days or hours before the ceremony, is far more vulnerable to a challenge based on coercion or duress.

Steps to Create a Prenuptial Agreement

If you decide a prenup is right for your situation, here is the process:

1. Have an honest conversation with your partner. Before involving attorneys, talk openly with your partner about your financial situations, concerns, and goals for the prenup. Frame the discussion around mutual protection and transparency, not distrust.
2. Compile complete financial records. Both partners should gather documentation of all assets (bank accounts, investments, real estate, retirement accounts, business interests), debts (student loans, credit card debt, mortgages), income sources, and any other financial obligations.
3. Hire separate attorneys. Each partner should retain their own family law attorney. This ensures that both parties receive independent legal advice and dramatically increases the enforceability of the agreement. Many attorneys offer flat fees for prenuptial agreement drafting.
4. Negotiate the terms. Work with your attorneys to draft terms that are fair to both parties. Be prepared to compromise — a prenup should protect both partners, not just one.
5. Review and revise. Both parties and their attorneys should review the draft carefully. Make revisions as needed. Do not rush this process.
6. Sign the agreement. Execute the agreement well before the wedding date. Both parties should sign willingly and without pressure. Have the agreement witnessed and notarized if your state requires it.
7. Store the agreement safely. Keep the original in a secure location (such as a safe deposit box) and provide copies to both attorneys. Both partners should retain copies.

When a Prenup Can Be Invalidated

Even a properly executed prenup can be challenged and potentially invalidated in divorce proceedings. Common grounds for invalidation include:

• Duress or coercion: One party was pressured or threatened into signing.
• Fraud or nondisclosure: One party hid assets, lied about debts, or failed to provide complete financial disclosure.
• Lack of independent counsel: One party did not have their own attorney and did not knowingly waive that right.
• Unconscionability: The terms are so one-sided that enforcement would be fundamentally unfair.
• Improper execution: The agreement was not properly signed, witnessed, or notarized as required by state law.
• Changed circumstances: In some states, a court may decline to enforce provisions that have become unconscionable due to dramatically changed circumstances since the agreement was signed.

Who Should Consider a Prenuptial Agreement?

While any couple can benefit from a prenup, they are especially important for people who:

• Own a business or professional practice
• Have significant assets or debts entering the marriage
• Have children from a prior relationship
• Expect to receive a substantial inheritance
• Are significantly older or wealthier than their partner
• Live in a community property state and want different property division rules
• Are entering a second or subsequent marriage
• Have a career that may require one spouse to sacrifice earnings or career advancement for the family

A prenuptial agreement does not mean you expect your marriage to fail. It means you and your partner are mature enough to have difficult financial conversations, plan for the unexpected, and protect each other regardless of what the future holds. Think of it as an insurance policy — you hope you never need it, but you are glad it is there if you do.