Is a Prenup Enforceable?

A prenuptial agreement (prenup) is a contract made before marriage about how property and support will be handled if the marriage ends by divorce or death (Cornell LII).

Requirements for enforceability

Most states require:

1. A written agreement signed by both parties. Oral promises are not enough.
2. Voluntariness. Pressure, threats, or presenting the agreement at the last minute can make it unenforceable.
3. Fair disclosure of each party's assets, debts and income, or a knowing waiver of disclosure.
4. No unconscionability. Courts can refuse terms so one-sided they shock the conscience, particularly when they were unfair at signing (Cornell LII). Some states also look at fairness at the time of divorce.

Many states have adopted the Uniform Premarital Agreement Act, which sets these standards.

What a prenup can cover

• Separate vs. marital property
• Division of property at divorce
• Responsibility for debts
• Spousal support (alimony) waivers or limits, which some states restrict
• Ownership of a business
• Estate planning rights, such as waiving inheritance rights, together with wills and trusts

What a prenup cannot do

• Set child support below what the law requires
• Decide child custody, which courts decide based on the child's best interests
• Require illegal acts

Strengthening a prenup

• Sign well before the wedding.
• Each person has an independent lawyer.
• Attach complete financial disclosures.
• Avoid extreme terms.
• Review and update after major life changes.

What if there is no prenup?

State divorce law decides property division and support. See what counts as marital property.

Postnuptial agreements

Couples who are already married can sign a postnup, which many states enforce under similar or stricter standards.

A family lawyer should draft or review any prenup, and the other party should have their own lawyer.

Sources

1. Cornell Law School LII: Prenuptial agreement
2. Cornell Law School LII: Unconscionability