A prenuptial agreement is not a sign of distrust -- it is a financial planning tool that protects both partners. Here is what you need to know before the conversation.
What a Prenup Can Cover
A prenuptial agreement is a legally binding contract signed before marriage that outlines how assets, debts, and financial matters will be handled during the marriage and in the event of divorce. The most common provisions address the division of property acquired before and during the marriage, protection of a family business or professional practice, responsibility for debts brought into the marriage, and spousal support (alimony) terms.
Prenups can also define what constitutes separate versus marital property, establish how income earned during the marriage will be treated, outline financial responsibilities during the marriage (such as contributions to household expenses), and protect inheritance rights for children from previous relationships. For business owners, a prenup can keep the business as separate property and prevent a spouse from claiming an ownership interest in divorce.
Some couples also use prenups to address estate planning issues, such as waiving rights to each other's retirement accounts or agreeing on how life insurance proceeds will be distributed. Prenups can even include provisions about financial behavior during the marriage, such as agreements about maintaining joint versus separate bank accounts.
What a Prenup Cannot Cover
There are clear limits on what a prenuptial agreement can include. Courts will not enforce provisions that determine child custody or child support. These decisions must be made based on the child's best interests at the time of divorce, and parents cannot contract away a child's right to support. Any prenup provision attempting to set custody or support terms in advance will be struck down.
Prenups also cannot include provisions that encourage divorce, waive the right to a court hearing, or include terms that are fundamentally unfair to one party. Personal lifestyle clauses -- such as penalties for weight gain, requirements about household chores, or restrictions on social media use -- are generally unenforceable, although some couples still include them as statements of intent.
A prenup cannot be used to shield assets from legitimate creditors. If one spouse owes taxes, child support from a previous relationship, or other court-ordered obligations, a prenup cannot protect assets that would otherwise be used to satisfy those debts. The agreement governs the relationship between the spouses, not between either spouse and third parties.
Enforceability Requirements
For a prenup to hold up in court, it must meet several requirements. Both parties must fully disclose their assets, debts, and income. A prenup based on incomplete or fraudulent financial disclosure is almost certainly unenforceable. Each party should provide a detailed financial statement as part of the agreement process.
Both parties should have independent legal counsel. While not required in every state, having separate attorneys is the strongest protection against a later claim that one party did not understand the agreement. If one party cannot afford an attorney, the other party paying for their legal representation can actually strengthen the agreement's enforceability by demonstrating fairness.
The agreement must be signed voluntarily, without coercion or duress. Presenting a prenup the night before the wedding -- or worse, the day of -- is a common way to get it thrown out. Courts look at whether both parties had adequate time to review the agreement, consult with attorneys, and negotiate terms. A prenup signed months before the wedding is far more defensible than one signed under time pressure.
The terms must be substantively fair. An agreement that leaves one spouse destitute while the other retains all assets may be deemed unconscionable and unenforceable. Courts evaluate fairness both at the time the agreement was signed and at the time of enforcement, particularly for agreements signed many years before divorce.
When to Discuss It and What It Costs
The best time to bring up a prenup is early in the engagement -- ideally as soon as you start discussing wedding plans. Framing the conversation around financial planning rather than distrust helps. Approaching it as a mutual protection that benefits both partners sets the right tone. Many financial advisors recommend discussing financial expectations even before the engagement.
Allow at least three to six months before the wedding to complete the prenup process. This gives both parties time to hire attorneys, exchange financial disclosures, negotiate terms, draft the agreement, and review and sign the final document without feeling rushed. Starting early also demonstrates that neither party was pressured into signing.
The cost of a prenup typically ranges from $2,500 to $10,000 total, covering both attorneys and document preparation. Simple prenups for couples with straightforward finances can cost as little as $1,500 to $3,000. Complex agreements involving business interests, significant assets, or multi-state property can cost $10,000 to $25,000 or more. Each party pays their own attorney, though some couples agree to split the total cost.
State Variations and Common Provisions
Prenuptial agreement law varies significantly by state. About half of US states have adopted the Uniform Premarital Agreement Act (UPAA) or its updated version, which provides a consistent framework for prenup enforceability. States that have not adopted the UPAA may have different rules about what can be included, what constitutes adequate disclosure, and when courts can set aside agreements.
Community property states and equitable distribution states treat marital property differently by default, which affects how prenups are drafted. In community property states like California and Texas, a prenup can override the default 50/50 split. In equitable distribution states like New York and Florida, a prenup can establish specific division terms instead of leaving the decision to a judge's discretion.
Common provisions in modern prenups include sunset clauses that cause the agreement to expire after a certain number of years of marriage, escalation clauses that increase one spouse's share of assets the longer the marriage lasts, provisions that become more generous to the less wealthy spouse over time, and specific terms addressing what happens to the marital home. A well-drafted prenup should be reviewed periodically and can be amended by mutual agreement through a postnuptial agreement if circumstances change significantly.