Prenup

A prenuptial agreement, commonly called a prenup, is a legally binding contract signed by two people before they marry. It establishes how assets, debts, and financial matters will be handled if the marriage ends in divorce, separation, or death. Prenups are recognized in all 50 states, though enforceability requirements vary by jurisdiction.

How a prenup works

A prenup is negotiated and signed before the wedding. Both parties must enter into the agreement voluntarily, with full financial disclosure, and, ideally, with independent legal counsel on each side. The agreement takes effect upon marriage and supersedes default state marital property laws if the marriage ends.

For a prenup to be enforceable, most states require:

• The agreement is in writing and signed by both parties
• Both parties fully disclose their assets, debts, and income
• Both parties sign voluntarily, without coercion or undue pressure
• The agreement is executed with enough time before the wedding to avoid claims of duress
• The terms are not unconscionable or contrary to public policy

Why a prenup matters

Without a prenup, state law determines how assets and debts are divided in a divorce. Depending on the state, a spouse may be entitled to a share of property or business interests built before the marriage.

A prenup is especially relevant for individuals who own a business, hold substantial separate property, have children from a prior relationship, or carry significant debt. For business owners, a prenup can prevent a divorce from forcing a sale or triggering a valuation dispute in court.

Common uses

• Protecting a business interest: Establishes that a business and any appreciation in its value remain separate property; protection of separate property is the most common provision in a prenup.
• Clarifying separate vs. marital property: Ensures assets owned or inherited before marriage are not subject to division
• Addressing debt: Specifies that one spouse is not responsible for the other's pre-existing debts
• Providing for children from a prior relationship: Protects assets intended to pass to children from a previous marriage
• Defining spousal support: Establishes whether alimony will be paid and under what conditions

Key limitations

A prenup cannot waive child support obligations, predetermine child custody, or include terms that are grossly unfair to one party. Courts will not enforce provisions that violate public policy or applicable law.

Timing matters. An agreement signed the night before a wedding may be challenged on grounds of duress. Most family law attorneys recommend starting the process at least three to six months before the wedding.

State law governs enforceability. Some states have adopted the Uniform Premarital Agreement Act; others apply their own standards. An attorney familiar with the relevant state's laws should review any prenup before it is signed.

Prenup vs. postnuptial agreement

A prenup is signed before marriage. A postnuptial agreement serves the same general purpose but is executed after the marriage. Postnups may face greater court scrutiny because the parties are already in a legal relationship when signing.

Related terms

• Marital property. Assets acquired during a marriage, which a prenup can redefine or limit
• Separate property. Assets owned before marriage or received as gifts or inheritance, which a prenup can explicitly protect
• Postnuptial agreement. A similar contract executed after marriage
• Last will and testament. An estate planning document that works alongside a prenup to direct how assets pass at death

FAQs about a prenup

Can a court throw out a prenup?

Yes. A court can decline to enforce a prenup if one party failed to fully disclose finances, signed under coercion, or if the terms are unconscionable at the time of enforcement.

Does a prenup only apply in divorce?

No. A prenup can also govern how assets are handled at death, making it relevant to estate planning.

Is a prenup only for wealthy individuals?

No. A prenup is equally relevant when one party carries substantial debt, owns a business, expects a future inheritance, or is entering a second marriage with children from a prior relationship.