What Is a Prenuptial Agreement
A prenuptial agreement is a legally binding contract two people sign before marriage that specifies how assets, debts, and spousal support will be handled if the marriage ends in divorce. It overrides the default property division rules that would otherwise apply under your state's laws.
Courts in all 50 states enforce prenuptial agreements if they meet specific requirements. Both parties must have adequate time to review the agreement (typically at least 3 to 5 days before signing), have the opportunity to consult separate attorneys, and sign voluntarily without coercion. The agreement cannot be unconscionable, meaning it cannot be so one-sided that it shocks the conscience of the court.
Most prenuptial agreements address three core areas: property division (determining what stays separate versus what becomes marital property), spousal support (alimony amounts and duration), and sometimes custody arrangements, though courts rarely enforce custody provisions in prenups since they must prioritize the child's best interests at the time of divorce.
Enforceability and State Variations
Prenuptial enforcement varies significantly by state. Community property states like California, Texas, and Arizona apply different rules than equitable distribution states. In community property states, assets acquired during marriage are typically split 50/50 regardless of who earned them, so prenups have broader impact. In equitable distribution states like New York and Florida, courts divide assets fairly but not necessarily equally, giving prenups somewhat less leverage.
Some states enforce agreements that waive or limit spousal support claims entirely. Others, including California, will enforce a support waiver only if the waiving spouse had independent legal representation. A few states still require that both parties fully disclose their finances in the prenuptial agreement itself or risk having it invalidated.
What Can and Cannot Be Included
- Property division of real estate, vehicles, investments, and business interests
- Debt allocation for mortgages, credit cards, and other obligations
- Spousal support amounts, duration, and conditions (with state-specific limits)
- Cannot include: child custody arrangements or child support modifications (courts will override these to protect the child's welfare)
- Cannot include: personal matters like infidelity clauses or lifestyle requirements, which courts view as unenforceable
Common Questions
Can a prenuptial agreement be changed after marriage?
No. Once you're married, you would need to sign a postnuptial agreement instead, which follows similar rules but is sometimes harder to enforce because courts scrutinize the timing and circumstances more closely.
Does a prenuptial agreement protect separate property?
Yes. A prenuptial agreement can clearly designate certain assets as separate property, meaning they remain yours alone even if they increase in value during the marriage. This is especially important if you own a business, inherited property, or have significant premarital savings you want to keep separate.
What happens if we don't have a prenuptial agreement?
Your state's default divorce laws apply. In community property states, each spouse typically receives 50% of assets accumulated during the marriage. In equitable distribution states, a judge divides property they deem fair based on factors like income, length of marriage, and each spouse's contributions. Spousal support follows state guidelines based on income differential and marriage length, often calculated as 35 to 40% of the higher earner's income for shorter marriages.