Family Law · Sub-Practice

Prenuptial Agreements

A prenuptial agreement isn't pessimism — it's the most mature financial conversation you can have before marriage.

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§ Overview

What you need to know.

A prenuptial agreement is a contract entered into before marriage that specifies how assets and debts will be divided if the marriage ends in divorce or death. It is not just for the wealthy — any couple with significant assets, business interests, children from prior relationships, or financial imbalance can benefit.

A prenuptial agreement (or antenuptial agreement) can cover property division, spousal support, debt responsibility, and the treatment of future inheritances or business growth. It cannot cover child custody or support — courts will not enforce those provisions, as the child's rights are determined at the time of divorce based on current circumstances. For the agreement to be enforceable, both parties must fully disclose their assets and debts, both must have independent legal counsel, and the agreement must be signed well before the wedding — courts scrutinize agreements signed days before the ceremony.

⚡ § Key issues & stakes

▸Unenforceable provisions: courts will strike provisions that are unconscionable, involve fraudulent disclosure, or were signed under duress
▸Inadequate disclosure: failure to fully disclose assets is grounds to invalidate the entire agreement in most states
▸Lack of independent counsel: some states require or strongly prefer that each party has their own attorney
▸Provisions about child matters: unenforceable — courts will apply the best-interests standard regardless of what the prenup says
▸Timing: agreements signed under pressure or immediately before the wedding can be challenged on duress grounds
▸Oral agreements: prenuptial agreements must be in writing and signed — oral agreements about marital property are unenforceable

✅ § Your options & strategies

›Full financial disclosure schedules: attach detailed asset and debt schedules to the agreement to eliminate disclosure challenges
›Independent legal counsel for both parties: the strongest protection against enforceability challenges
›Reasonable terms: courts are more likely to enforce agreements where neither party is left destitute
›Sufficient time before the wedding: execute the agreement at least 30 days before the ceremony — more is better
›Sunset provisions: some couples include provisions that modify the agreement after a certain number of years of marriage
›Postnuptial agreements: if a prenup was not executed, a postnuptial agreement (signed during marriage) can address the same issues

“The most common reason prenuptial agreements fail in court is inadequate financial disclosure. Courts treat these agreements like any other contract — and a contract based on fraudulent or incomplete information is voidable. Attach complete, detailed financial schedules to your agreement. This is not just a legal requirement — it is also the foundation of the honest financial conversation that prenuptial agreements are designed to prompt.”
— The Counsel editors

§ What to look for in an attorney

01Family law experience specifically with prenuptial drafting and enforcement — not general contract attorneys
02Willingness to take the time to understand your specific financial situation and goals
03Knowledge of your state's enforceability standards and any specific statutory requirements
04Ability to draft clearly and comprehensively — vague agreements invite disputes later
05Recommendation that your partner retain separate counsel — this strengthens enforceability
06Timing awareness — your attorney should advise you on when to present the agreement to your partner relative to the wedding

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§ Ask these at your consultation

Questions that matter

❓What provisions are enforceable in this state, and what provisions will courts strike regardless?
⚖️How much financial disclosure is required, and what happens if I don't disclose everything?
🔍Can the agreement limit spousal support, and if so, how?
📋How does the agreement handle a business I own — or might start — during the marriage?
💬Does my partner need their own attorney for the agreement to be enforceable?
💡How far in advance of the wedding should this be signed?

§ FAQ

Common questions about prenuptial agreements.

Does asking for a prenuptial agreement mean I don't trust my partner?

Not at all — though that is the most common emotional response. A prenuptial agreement is a financial planning document, not a prediction of divorce. Couples who go through the disclosure and negotiation process often report that it was one of the most productive financial conversations they ever had. It forces clarity about money, debt, and expectations before the marriage begins.

Can a prenuptial agreement be changed after marriage?

Yes. A postnuptial agreement is a contract signed during marriage that modifies or supplements the prenuptial agreement, or serves the same function when no prenup was signed. Postnuptials are enforceable in most states but are subject to the same disclosure and voluntariness requirements as prenuptials.

What if my prenuptial agreement is unfair?

Courts will refuse to enforce prenuptial agreements that are "unconscionable" — meaning so one-sided that enforcing them would be fundamentally unjust. A provision that leaves one spouse with nothing after a long marriage while the other retains all marital assets may be challenged. The standard for unconscionability is high, but extreme one-sidedness is a real basis to challenge enforceability.

Can a prenuptial agreement address what happens when I die?

Partially. Prenuptial agreements often include provisions about inheritance and the treatment of property at death — particularly important for spouses who have children from prior relationships. However, wills, trusts, and beneficiary designations must also be updated to be consistent with the prenuptial agreement's intentions. The prenup alone does not ensure assets go where you want them to go at death.

§ Counsel