In this guide
What Can Be Included in a Prenup
Prenups primarily cover financial matters. You can specify which property remains separate (owned by one spouse) and which becomes marital (shared). This includes real estate, bank accounts, investments, businesses, retirement accounts, and personal property. You can also define how debts—like credit card balances, student loans, or mortgages—will be allocated.
You can outline spousal support (alimony) terms, including whether it will be paid, how much, and for how long. However, courts may override terms that are unconscionable or leave a spouse destitute. You can also waive alimony entirely, but this waiver must be voluntary and informed.
Prenups can address inheritance rights, life insurance beneficiary designations, and how to handle increases in asset value during the marriage. You can also include clauses about how property will be divided if you divorce, and even decisions about which state's law will govern the agreement.
- Division of property and debts
- Spousal support (alimony) terms
- Inheritance and estate planning rights
- Life insurance and beneficiary designations
- Business ownership and valuation
- Choice of law provisions
What Cannot Be in a Prenup
Prenups cannot dictate child custody, visitation, or child support. Courts prioritize the best interests of the child, and parents cannot waive a child's right to support. Any attempt to set child support amounts or custody arrangements will be disregarded, though you can include a statement that you've considered the children.
You cannot include provisions that encourage divorce, such as a penalty for initiating divorce or a reward for staying married. These are considered against public policy. Similarly, you cannot waive rights to Social Security benefits or other government benefits.
Prenups cannot contain illegal or unethical terms, such as hiding assets, committing fraud, or engaging in illegal activities. You also cannot waive your right to an attorney in a way that leaves you uninformed, and you cannot include personal matters like household chores, pet custody (though some states allow pet provisions), or religious upbringing—these are generally unenforceable.
- Child custody and child support
- Provisions that encourage divorce
- Waivers of Social Security or government benefits
- Illegal or fraudulent terms
- Personal lifestyle clauses (e.g., chores, weight, religion)
Legal Requirements for a Valid Prenup
To be enforceable, a prenup must be in writing and signed by both parties. Most states require notarization or at least a written acknowledgment. Verbal agreements are not valid. Both parties must sign voluntarily, without duress or coercion, and with full disclosure of assets and debts.
Each spouse should have the opportunity to consult with independent legal counsel. If one party doesn't have a lawyer, courts may scrutinize the agreement more closely, but it can still be valid if the waiver of counsel is explicit and the agreement is fair.
The agreement must be fair and not unconscionable at the time of enforcement. If the terms are shockingly one-sided, a court may refuse to enforce them. Also, the agreement must be executed before the wedding—signing too close to the wedding date can raise duress issues, so it's best to sign well in advance.
- In writing and signed by both parties
- Notarized or acknowledged as required by state law
- Full financial disclosure
- Voluntary signing, no duress
- Opportunity for independent legal counsel
- Fair and not unconscionable
Common Mistakes That Invalidate a Prenup
Failing to disclose assets or debts is one of the biggest mistakes. If you hide assets, the prenup can be thrown out entirely. Be completely transparent, even if it feels uncomfortable. Courts value honesty over secrecy. You can prenuptial agreement with a state-specific template data-doorway-opt-inline here.
Waiting until the last minute to present a prenup can create duress. If you spring it on your fiancé days before the wedding, a court may see it as coercion. Start the process months in advance to ensure both parties have time to review and negotiate.
Using a generic prenup template without tailoring it to your state's laws is risky. State rules vary significantly, and a template may miss required clauses or include unenforceable ones. Always have a local attorney review—or better, draft—your prenup.
- Incomplete or false financial disclosure
- Signing under duress or without time to consider
- Using a one-size-fits-all template
- Failing to update the prenup after major life changes
- Not having independent legal advice
How to Create a Strong Prenup
Start early—ideally 6 months before the wedding. This gives you time to gather financial documents, negotiate terms, and finalize the agreement without pressure. Both parties should compile a full list of assets, debts, income, and expected inheritances.
Hire separate attorneys. Even if you both use the same lawyer, it's a conflict of interest. Each of you should have your own counsel to ensure your interests are protected. The cost is an investment in certainty.
Make the prenup fair. While you can negotiate, a wildly one-sided agreement is more likely to be challenged and invalidated. Consider sunset clauses (e.g., alimony waiver expires after 10 years) or periodic reviews to keep it reasonable.
- Begin negotiations early
- Provide full financial disclosure
- Each party hires their own lawyer
- Avoid unconscionable terms
- Include a sunset clause or review mechanism
When a Prenup Might Be Challenged
A prenup can be challenged in court if one spouse claims they didn't sign voluntarily, didn't understand the agreement, or was misled. This is why documentation of financial disclosure and legal representation is crucial.
If the terms are unconscionable—such as leaving a spouse with no assets and no support—a court may refuse to enforce the agreement. Courts also look at whether the prenup is being used to avoid child support or other legal obligations.
If you and your spouse later modify or waive the prenup, that change must be in writing and signed by both parties. Oral modifications are generally not enforced. Also, if you divorce and then remarry each other, the original prenup may not automatically apply to the new marriage.
- Claims of duress or coercion
- Lack of financial disclosure
- Unconscionable terms
- Failure to follow state formalities
- Subsequent oral modifications