What makes a prenup enforceable?

A written agreement properly signed

All 50 states require prenups to be in writing. However, each state may slightly differ in its formalities around signing. Some states say signatures alone are enough. Other states require two witnesses and notarization. Other states may just require notarization. In general, here are the formalities that may be required for a prenup: 

• The agreement is in writing (no oral prenups)
• Both fiancés signed the document
• There are two witnesses (only a handful of states require this)
• There is proper notarization (only a handful of states require this)

Following these proper state-required formalities is the first step in creating an enforceable document. In addition, many attorneys and online prenup platforms like HelloPrenup require notarization regardless of state law, because it’s an added level of protection that can be beneficial, even if not required. 

Agreement voluntarily entered into by both parties

All states say prenups must be entered into voluntarily. However, what a state considers “voluntary” may differ. For example, all states will void a prenup if it's deemed to have been signed under duress; however, the threshold for what constitutes duress may vary from state to state. Here are some examples of what a judge may be looking for when analyzing voluntariness: 

• No duress or coercion. No threats, undue influence, pressure, egregious ultimatums, or similar. The parties must willingly enter into the agreement. 
• Time to review. Some states will analyze the time each party had to review the contract. Some states even statutorily impose a time requirement, such as California’s 7-day rule. However, prenups signed before the wedding are able to be upheld in many states—it’s typically a state-specific and case-by-case analysis. 
• Clear opportunity to hire a lawyer. Most states do not require legal representation for a prenup to be valid. However, almost all states do require each person to have the opportunity to hire a lawyer if they want one. This may mean having enough time to call a lawyer and have it reviewed. 
• Bargaining power and sophistication of the parties. Some states will look at the relationship between the parties to determine if it was voluntarily entered into. For example, a prenup may not hold if one person was an older, experienced businessman, while the other party didn’t speak English, was younger, and had no business experience, if the agreement is also unfair. 

The court will consider the situation as a whole to determine whether the parties entered into the agreement voluntarily.

Proper financial disclosure

Financial disclosure is a written statement of all assets, debts, income, and other financial interests owned by both parties attached to the end of the prenuptial agreement. Most states require financial disclosure as a key element to an enforceable prenuptial agreement. There are a handful of states that allow parties to waive their right to financial disclosure, but most attorneys don’t recommend this, as it can create legal risks down the road. 

Financial transparency during the prenup process is crucial for each fiancé to understand what they are agreeing to. For example, if Fiance A doesn’t understand that Fiance B makes $10 million per year in income, they may not be able to accurately decide whether or not they want to waive spousal support.

When a prenup is challenged in a divorce, if financial disclosure is inaccurate or not completed, one party can potentially make the argument that they weren’t fully aware of the financial landscape and didn’t make a knowing and informed decision on the terms within the agreement. As an example, in a real Virginia prenup dispute (Chaplain v. Chaplain, 54 Va. App. 762 (2009)), the court held a prenup unenforceable because the husband failed to provide any level of financial disclosure of his $20 million in assets before the marriage, and the wife did not waive disclosure in the prenup. 

Substantively fair terms

Some states (but not all) may evaluate whether the terms in the prenup were substantively fair—sometimes at the time of the signing and sometimes at the time of the divorce, and sometimes a mixture of both. Courts may not uphold prenups that are grossly one-sided, but that does not mean the contract needs to be exactly 50-50. Assets can generally be unevenly distributed in a prenup, as long as it's reasonable. 

For example, Illinois courts have eliminated the requirement that agreements be "fair and reasonable," meaning a court cannot invalidate a prenup solely because there was an uneven distribution of assets. Each state has its own threshold (if at all) for when unfair terms become so unreasonable that they’re unenforceable.

The opportunity for independent legal counsel or valid waivers of counsel

While most states do not require independent legal counsel for a prenuptial agreement to be valid and enforceable, many states do require each party to have a reasonable opportunity to hire one, if they want. This means that presenting the prenup to your partner immediately before walking down the aisle may lead to consequences if they didn’t have the time to call a lawyer before the wedding. 

Additionally, in many situations, only one party may choose to have legal representation. In the case that only once fiance hires representation, it’s generally recommended that the other fill out a written waiver of counsel and attach it to the prenuptial agreement to demonstrate their understanding. Both parties may not be represented by the same attorney. 

Fair circumstances surrounding the signing of the contract

Another analysis that courts may exercise is whether the circumstances surrounding the execution of the prenup were fair. For example, courts may look for some of the following red flags when analyzing the execution of a prenup: 

• Whether each party had the opportunity to hire a lawyer
• When the prenup was first discussed and/or presented
• Whether there was any bad behavior was involved in the discussion and negotiation of the prenup, such as threats, pressure, etc. 
• Whether the parties were rushed to sign, and the ability to cancel the wedding  
• Whether either party was pregnant, immigrating, or fully fluent in English

Timing is the most commonly analyzed factor—when a party presents the prenup right before the wedding without any warning, it can be a red flag, though not always a guaranteed problem. For example, in one Missouri case, the court upheld a prenuptial agreement signed on the wedding day where the prenup was actually discussed well before the wedding date. 

Permissible and lawful contract terms

Another rarer but important concept to discuss when it comes to prenup enforceability is the permissibility of terms. Prenups that include illegal or impermissible terms will not be enforced. For example, virtually all states do not allow couples to include child support terms in their prenups. In addition, there are a handful of states that do not allow parties to address spousal support. And, of course, no illegal terms such as requiring tax fraud or other unlawful acts. All of the terms that will be enforced must be legal and compliant with public policy. 

Enforceability is achieved through following state requirements, transparency, and care

Courts routinely uphold prenups that are executed in compliance with state requirements—such as notarization—are signed within a reasonable timeframe before the wedding with financial information disclosed fully to each party. Additionally, both parties must enter into the agreement willingly. Some states also analyze the fairness of the terms of the agreement or the circumstances surrounding the execution of the agreement. It’s important to remember and rest assured that most prenups that follow these principles will be enforced.