To put it simply, a prenuptial agreement (or prenup) is a legal contract couples enter into before getting married to define certain financial terms. Prenups are dictated by state laws, and the requirements vary. Couples often confuse prenups for divorce planning tools, but that’s not the case. In fact, prenups can actually improve a relationship when done properly.
Discussing finances prior to entering into a legal marriage can drastically decrease the chances of conflict and misunderstandings down the road. Below, we get into everything you need to know about prenuptial agreements, from the relationship aspect to the legal aspects.
What a prenup is (and isn’t)
A prenuptial agreement is a financial agreement made before marriage between two fiancés. This contract lays out terms and conditions for the marriage and potential divorce, such as property ownership, alimony, debt, inheritances, and much more. A prenup is not a divorce filing, a lack of trust, or only for the wealthy. In fact, prenups can protect someone with no money yet, but who believes they will earn money during the marriage.
When a prenup is signed
A prenup is signed before the marriage (as opposed to a postnup, which can be signed during the marriage). Most states do not have a “deadline” for how soon before the wedding a prenup must be signed. However, there are a handful of states, such as California and Minnesota, that do have prenup timing requirements, because as soon as a couple is married, they enter into a new state under the eyes of the state, which requires fiduciary duties to one another and comes with other legal rights.
What a prenup can cover
While individual states mandate what may and may not be included in a prenup, here is a general list of topics that may be included in a prenuptial agreement:
- Property ownership
- Debt allocation
- Spousal support (alimony)
- Inheritances
- Estate rights (what happens after one spouse dies)
- Business interests
- Choice of law clauses
- And more
What a prenup usually cannot include
There are limits to what may be included in a prenup. Generally, prenups may not include:
- Child custody clauses
- Child support clauses
- Anything illegal
- Anything against public policy
- A handful of states put restrictions on spousal support clauses
Courts generally want to avoid matters surrounding children, because these are the rights of the children, and not the parents. In addition, a court will not enforce a term that is against the law or policy of the state, such as tax evasion or fraud.
Who should consider a prenup
Prenuptial agreements can benefit a wide range of individuals. Remember, there is no set amount of money one person needs to have in order to benefit from a prenup. However, there are certain situations where a prenup may become especially important and helpful:
- One or both partners have premarital assets or debt
- One or both partners are likely to generate marital assets or marital debt
- Business owners
- Second marriages
- People with children from prior relationships
- Unequal assets
- Inheritance expectations
- Couples with pets
- Couples who have gone through IVF or plan to
- Anyone looking for financial clarity from their partner
A prenuptial agreement does more than just protect a wealthy person—it can also protect one party from debt, businesses, pets, and more.
How prenups are enforced
Prenuptial agreements are governed by state law. The general public policy regarding prenuptial agreements is that they are beneficial and that people should have the right to contract regarding their financial matters. Each state lays out the requirements that must be met in order to create a valid and enforceable agreement. While each state has its own rules, the general requirements are:
- Must be in writing
- Must be signed
- Notarization and witnesses (in some states)
- Financial disclosure
- Reasonableness of the agreement
When a couple gets a divorce, they would typically ask the court to apply the terms of their prenuptial agreement to determine how property, debt, and other financial issues should be handled, and the court will generally enforce the agreement so long as it was properly created and complies with the requirements of state law. Sometimes, prenups are used as negotiation leverage in mediation as well.
Do you need a lawyer for a prenup?
Generally speaking, most states and situations do not require legal representation for a prenuptial agreement. There are a few circumstances where it may become necessary, but the parties should not share a lawyer. This causes a conflict of interest for the attorney, and neither spouse gets true representation.
While not required, hiring representation while writing the prenup can be a good idea to deter any litigation against the prenup down the road. Showing a court that each party had representation increases the odds of enforceability, because it shows that each party knowingly entered into the agreement with a legal advocate by their side.
Common myths about prenups
Let’s debunk some common myths about prenups. Here are some of the most frequently mentioned misconceptions about prenuptial agreements:
| Misconception | Reality |
|---|---|
| “I don’t need a prenup; we trust each other in a divorce.” | No one gets married expecting mistrust—relationships evolve over time, and by the point a divorce occurs, you may be dealing with a very different dynamic than the one you started with. |
| “I don’t have any money, so I don’t need a prenup.” | Even if you don’t have any money now, you may accumulate inheritances or assets down the road. In addition, you can use a prenup to protect yourself against your partner’s debt. |
| “Prenups mean you expect divorce.” | Most couples don’t sign prenups because they expect their marriage to fail; they sign them to have honest conversations about money, expectations, and goals before getting married—conversations that can actually strengthen the relationship. |
| “Prenups are always one-sided.” | Prenups aren’t inherently one-sided—they’re customizable agreements that can be drafted to protect both partners, and they legally should be, as overly one-sided agreements can be thrown out by courts. |
How long does it take to get a prenup?
It depends. Some people can get same-day prenups if they’ve discussed the terms for enough time and are compliant with other state laws. On the other hand, many couples can take weeks or even months to finalize a prenup if they go back and forth in negotiations. At HelloPrenup, the average time for a couple to get a prenup is three to seven days, depending on whether or not the couple uses legal representation through the platform. When hiring a traditional attorney outside of HelloPrenup, the time may also depend on the attorney’s work speed and availability.
How much does a prenup cost?
HelloPrenup charges $599 per couple. If you are going the traditional route with an attorney, then the average national cost per couple is $8,000. Again, the factors affecting cost can be the goals of each spouse, the amount of negotiations that take place, the time it takes for the spouses to gather financial information, and the attorney’s availability. In addition, the cost of a prenup in California can vary from the cost of a prenup in Oklahoma, simply based on cost of living standards and attorney hourly rates.
Can a prenup be changed or canceled?
Yes, as long as both parties agree to revoke or amend the prenuptial agreement. When parties want to modify something in their prenuptial agreement after they have already gotten married, they will need to execute an amendment to the prenuptial agreement. Some states may refer to prenuptial agreement amendments as postnuptial agreements. If both parties want to “cancel” the prenup, they need to execute a revocation agreement, stating that they both agree to cancel the contract. Both amendments and revocation agreements must follow the same rules for creating the original agreement as required by the state.
Prenup v. postnup
It’s worth mentioning the difference between a prenup and a postnup. A prenup is signed before the couple gets married, whereas a postnup is signed any time during the marriage, not in contemplation of divorce. Prenups and postnups typically cover the same topics: property ownership, debt allocation, and alimony.
The key differences between prenups and postnups are the timing of when they are signed and the enforceability of the two agreements. Postnups can be (in some states) more difficult to enforce because some states place higher scrutiny on postnups. This is because two spouses who are already married have a fiduciary duty to one another and owe each other a higher level of respect and trust.
Why couples use prenups
The bottom line is that prenuptial agreements are about planning and transparency between a couple. They must be state-compliant and follow the rules laid out by each state for creating a valid prenup. Prenups do more than just protect couples in a divorce; they can also improve the relationship by reducing uncertainty, requiring tough conversations prior to the wedding, and aligning on goals. Prenups can be beneficial for anyone, but can be especially useful for couples with premarital assets and debt. When done thoughtfully and in compliance with state law, a prenup is about giving both partners clarity, confidence, and a shared understanding as they start their marriage journey.
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