What a Prenup Can Cover
A prenuptial agreement can address most financial matters, including:
- Which property is separate and which is marital or community property
- How property and debts will be divided at divorce
- Rights to a business, real estate, investments, or future earnings
- Whether, how much, and how long spousal support will be paid, or waived, subject to state limits
- What each spouse will receive at death, coordinated with a will or trust
- Life insurance requirements
- Which state's law governs the agreement
What a Prenup Cannot Do
| Not allowed | Why |
|---|---|
| Set or limit child support | Children's right to support cannot be bargained away by parents |
| Decide child custody or parenting time | Courts decide custody based on the child's best interests at the time |
| Require illegal acts or violate public policy | Courts will not enforce illegal terms |
| Penalize divorce or encourage it | Many courts reject terms that are designed to promote divorce |
| Control personal matters such as chores | Courts generally will not enforce lifestyle clauses |
When Courts Enforce a Prenup
About half the states have adopted the Uniform Premarital Agreement Act (UPAA) or a version of it. Under the UPAA approach, a prenup is enforceable unless the challenging spouse proves that:
- They did not sign voluntarily, or
- The agreement was unconscionable when signed and, before signing, they did not receive fair disclosure of the other person's finances, did not waive disclosure in writing, and did not have adequate knowledge of the other person's finances.
States that have not adopted the UPAA apply similar contract principles. Courts commonly look at:
- Timing: Was there enough time to review the agreement before the wedding, or was it presented at the last minute?
- Disclosure: Did each person fairly disclose assets, debts, and income?
- Independent lawyers: Did each person have the chance to consult their own attorney?
- Fairness: Some states also refuse to enforce terms that would be unconscionable at the time of divorce, such as leaving one spouse dependent on public assistance.
Formalities
Every state requires a prenuptial agreement to be in writing and signed by both parties. The agreement takes effect only when the marriage happens. Some states require notarization or witnesses, and it is common practice to attach financial disclosure schedules.
Postnuptial Agreements
A postnuptial agreement is a similar contract signed after the wedding. Postnups are allowed in most states, but courts may review them more strictly because spouses owe each other duties of good faith during marriage.
Tips for a Solid Prenup
- Start the conversation and the drafting process months before the wedding.
- Exchange full financial disclosures in writing.
- Have separate lawyers for each partner.
- Keep the terms reasonable; one-sided agreements are more likely to be challenged.
- Review the agreement after major life changes, such as children or a large inheritance.
- Store signed originals safely and coordinate the prenup with your estate plan.
