Document Guide

Prenuptial agreement
IN PLAIN ENGLISH

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A prenuptial agreement — commonly called a prenup — is a contract between two people who are about to get married that determines what happens to their property, debts, and support obligations if the marriage ends in divorce or death. Without a prenup, state law decides these questions according to default rules that may or may not match what either spouse actually wants. A prenup lets the couple write their own rules, within limits.

Prenups used to be associated with wealthy families protecting inherited assets, but they've become more common across income levels as people marry later, bring more property and debt into marriage, and have more complicated financial lives. A prenup can protect a family business, keep student loans separate, ensure kids from a prior marriage inherit certain assets, or simply clarify expectations about money before the wedding — which, research suggests, may actually strengthen the marriage.

The catch is that prenups are legal contracts, and courts can refuse to enforce them if they weren't done right. Every state requires certain formalities — usually written form, voluntary signing, and some level of financial disclosure — and some states require each party to have independent legal counsel. Substantive unfairness matters too: a prenup that leaves one spouse destitute while the other keeps millions may be thrown out as "unconscionable." Getting a prenup right means following the rules, being honest about finances, and making sure neither party is signing under pressure or without understanding what they're agreeing to.

Common clauses in a prenuptial agreement

  • Recitals and purpose

    The introduction that explains why the parties are entering the agreement: to define their rights in case of divorce or death, to protect certain assets, to clarify financial expectations. Recitals don't create legal obligations, but they help a court understand the parties' intent if the agreement is later challenged.

  • Definitions of separate and marital property

    The core of most prenups: what stays separate (property each spouse brought into the marriage, gifts, inheritances) and what becomes marital or community property (typically, assets acquired during the marriage with marital funds). State law provides default definitions, but a prenup can override them — keeping a spouse's business separate, for example, even if it appreciates during the marriage.

  • Treatment of income during marriage

    Whether each spouse's earnings during the marriage remain their separate property or become marital property. In community property states, earnings are presumptively community; a prenup can change that. The flip side is that keeping income separate may mean less financial sharing during the marriage.

  • Division of property on divorce

    How property will be divided if the marriage ends. Some prenups specify that each spouse keeps their separate property and marital property is split 50/50. Others use formulas — the longer the marriage, the more the lower-earning spouse receives. The agreement might list specific assets (the house, the business, the retirement accounts) and say who gets each.

  • Spousal support (alimony)

    Whether one spouse will pay support to the other after divorce, and if so, how much and for how long. Prenups can waive alimony entirely, cap it, or set a formula tied to the length of the marriage or the income disparity. Courts scrutinize alimony waivers more closely than property divisions — some states won't enforce a complete waiver if it would leave one spouse in poverty.

  • Treatment of debts

    Who is responsible for debts each spouse brings into the marriage (student loans, credit cards, prior mortgages) and how debts incurred during the marriage will be allocated on divorce. This protects each spouse from being on the hook for the other's pre-existing obligations.

  • Business interests

    Special provisions for a family business, professional practice, or startup. The prenup might keep the business entirely separate, or it might give the non-owner spouse a percentage that increases over time, or it might require a buyout at a formula price if the marriage ends. Valuation methodology (how to appraise the business) matters and should be addressed.

  • Retirement accounts and benefits

    How 401(k)s, IRAs, pensions, and other retirement assets will be treated — as separate property, marital property, or some hybrid. Retirement accounts often have their own rules (ERISA, QDRO requirements) that intersect with prenup terms, so coordination with an estate-planning attorney may be needed.

  • Real estate

    Provisions for the marital home and any other real property — who owns it, who pays the mortgage, what happens on divorce. A common structure is that the home remains separate property of the spouse who paid for it, but the other spouse has a right to live there during the marriage and receive a buyout or share of appreciation on divorce.

  • Life insurance and death benefits

    Requirements to maintain life insurance naming the other spouse as beneficiary, especially if one spouse is waiving rights to the other's estate. This ensures the waiving spouse isn't left with nothing if the marriage ends by death rather than divorce.

  • Estate and inheritance rights

    Waivers of the right to inherit from the other spouse's estate, to claim an "elective share" (a statutory minimum that spouses can take regardless of the will), or to serve as executor. These provisions often go hand-in-hand with estate planning — each spouse may have their own trust and estate documents that align with the prenup.

  • Financial disclosures

    A list or schedule of each party's assets, debts, income, and liabilities, attached to the agreement. Full disclosure is usually a legal requirement for enforceability. If one party hides assets or understates their value, the prenup may be voidable.

  • Sunset clause

    A provision that terminates or modifies the prenup after a certain number of years of marriage. For example, the agreement might expire entirely after 10 years, or the property-division formula might become more generous to the lower-earning spouse over time. Sunset clauses are negotiable and reflect the idea that a long marriage changes the equities.

  • Governing law and dispute resolution

    Which state's law applies (usually where the couple lives, but it can matter if they move) and whether disputes go to mediation, arbitration, or court. Family courts handle divorce, but arbitration clauses in prenups are generally enforceable for property and support issues.

Red flags to watch for

  • No independent legal counsel

    A prenup where one party's lawyer drafted the document and the other party signed without their own attorney. Courts look skeptically at these agreements, and some states won't enforce them. Each party should have their own lawyer, or at least a clear written waiver.

  • Inadequate financial disclosure

    A prenup that lacks schedules of assets and debts, or that includes vague or incomplete disclosure. If you don't know what you're giving up, the agreement may be voidable. Review the schedules carefully — do the numbers match what you know?

  • Last-minute signing

    An agreement presented days (or hours) before the wedding, when saying no feels impossible. Courts treat timing as evidence of coercion. The more time between signing and the wedding, the harder it is to claim duress. Ideally, sign at least 30 days before.

  • Complete waiver of alimony

    A clause that eliminates spousal support entirely, regardless of circumstances. Courts may refuse to enforce this if it would leave one spouse destitute, especially in a long marriage where one spouse sacrificed career for family. A cap or formula is often more enforceable than a total waiver.

  • One-sided asset protection with no upside for the other spouse

    A prenup that protects one spouse's assets while giving the other nothing — no share of appreciation, no support, no life insurance. Courts may find this unconscionable, especially if circumstances have changed (e.g., a stay-at-home parent who gave up their career).

  • Provisions about child custody or child support

    Prenups cannot determine child custody or child support — those decisions are made by a court based on the child's best interests at the time of divorce. A prenup that includes these provisions may be void entirely or have those sections struck.

  • No sunset or adjustment mechanism

    An agreement that locks in terms forever, with no adjustment for a 20-year marriage, children, career changes, or one spouse becoming disabled. Consider whether the terms will still feel fair in 10 or 20 years.

  • Hidden arbitration clause

    A requirement to resolve all disputes through private arbitration, which may limit discovery and appeals. Arbitration can be efficient, but family courts exist for a reason, and you may want access to them.

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// This is not legal advice // Plain-English summary generated by AI // Always read the original document