Prenups: Who Should Get One and How to Make It Valid

If you're planning to get married, you may be wondering whether you need a prenuptial agreement (or "prenup" for short). Before you make that decision, you should understand what a prenup is, what it can and can't do, the most common reasons couples choose to sign these agreements, and what makes a valid prenup.

What Is a Prenup?

A prenuptial agreement is a written contract created by two people before they're married. Typically, a prenup lists all of the property each person owns and debts they owe, and it spells out each person's property rights during the marriage and if they later get divorced..

Who Needs a Prenup?

Contrary to popular opinion, prenups are not just for the rich. While premarital agreements are often used to protect a wealthy spouse's assets, couples of more modest means increasingly turn to them for their own purposes. Here are a few reasons you might want a prenup.

You Want to Decide For Yourself How to Divide Property

When couples divorce, one of the first tasks is identifying and allocating separate property from marital property. Separate property includes the assets a spouse owned before the marriage and assets acquired through gift or inheritance. Marital property includes assets that the spouses acquired during the marriage. In general, if you can prove that you owned the property before you got married, it will remain your separate property, and the court won't award any of it to your spouse.

There are two ways courts can divide marital property. In community property states, courts generally split marital property equally, using a 50/50 split. In equitable distribution states, judges divide marital property in a way they believe is fair, depending on the individual circumstances of each case. This method doesn't always result in a 50/50 split. Courts consider many factors when determining what would be an equitable division.

A prenuptial agreement allows you to essentially override default state divorce laws and create your own rules for how your property will be divided if your marriage ends in divorce. A prenuptial agreement can list what property belongs to each spouse individually and what happens to that property if the couple divorces.

Learn more about separate and marital property.

You Want to Pass Separate Property to Children From a Prior Marriage

A couple with children from previous marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children and still provide for each other, if necessary. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.

You Want to Clarify Your Financial Rights and Responsibilities

Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during their marriage. For instance, you can use a prenup to spell out how you'll manage joint bank accounts, credit cards, household bills, and savings. Or you might want to spell out your respective obligations when one spouse plans to put the other through college or a professional degree program.

You Don't Want to Be Responsible for Your Spouse's Debts

There's no doubt that money troubles can be the cause of many divorces. If you and your fiancé want to avoid falling into the same trap that many do, you can add a provision to your prenuptial agreement to address debt. The essential component of a fair and valid prenup is full disclosure—both parties should complete a financial disclosure statement, identifying all of their assets and debts. They should also attach a copy of this to the prenup contract.

Like assets, your agreement should identify separate and marital liabilities and how you will divide each debt. Prenuptial agreements are especially helpful if one spouse brings a significant amount of debt to the relationship.

You Want to Limit Spousal Support

It's common in a marriage for one spouse to earn more than the other, or for one partner to pause a career to stay home and raise children. In the event of a divorce, the lower-earning spouse may qualify for spousal support (also called "alimony") depending on the length of the marriage and your state's divorce laws.

Spousal support can be temporary or long-term, and the amount and duration are typically decided by a judge after reviewing each spouse's financial situation. Because court decisions are uncertain and often left to judicial discretion, many couples address spousal support in their prenuptial agreement. A prenup can establish clear expectations about whether support will be paid, the amount, or how long payments will last—helping protect both spouses financially and avoid costly disputes later.

In most states, you can include a term in your prenuptial agreement that limits or waives spousal support. However, judges will not enforce alimony waivers that are grossly unfair, retaliatory, or leave one spouse without reasonable support. Some states have strict requirements for these types of waivers. For example, in California, anyone waiving spousal support rights must be represented by their own lawyer. (Cal. Family Code § 1612(c) (2025).) In New York, alimony waivers must include actual income figures and specific calculations showing exactly what amount is being waived. (JM v. GV, 225 N.Y.S.3d 859 (2025).)

What Happens If You Don't Make a Prenup?

If you don't make a prenuptial agreement, your state's laws determine what happens to separate and marital property in divorce or when one spouse dies.

Under the law, marriage is considered to be a contract between the spouses. With that contract comes certain automatic property rights for each spouse. For example, depending on the state laws, a spouse usually has the right to:

• share ownership of most property acquired during the marriage, with the expectation that the property will be divided between the spouses if they divorce
• share responsibility for either spouse's debts incurred during the marriage, and
• share in the management and control of marital property, including the right to sell or give away the property.

If your state's laws on marital or community property aren't to your liking, it's time to think about a prenup. In most cases, a prenup will allow you to decide for yourselves how you'll deal with your property.

What Can't Be Included in Your Prenuptial Agreement

Whether or not you create a prenuptial agreement is up to you and your spouse. However, even couples with a prenup will need to go through the formal divorce process and follow state laws. Although prenuptial agreements may include provisions for property and debt division, spousal support, and even inheritance rights, there are some critical topics that you can't control in a prenup that you'll need to address during the formal divorce process.

Child Custody, Parenting Time, and Child Support

Divorcing parents can work together to decide how to handle child custody, parenting time, and child support. However, the court will need to approve your agreement before implementing it, and you can't resolve these issues in advance in a prenuptial agreement. Judges always make custody decisions based on what's in the "best interests of the child" when the custody issue arises.

All states have specific factors and guidelines that judges must consider when making custody and child support decisions. If you and your child's other parent are having trouble agreeing on these issues, consider child custody mediation, or you'll have to live with whatever decision a judge makes for you.

Daily Tasks or Spousal Duties During the Marriage

Couples may want to include nonfinancial terms in their prenuptial agreement. However, "personal services" or "lifestyle" clauses are generally unenforceable in court, and including them may encourage the judge to take your entire agreement less seriously.

Examples of these kinds of terms include:

• household chore division
• personal behavior requirements, such as weight restrictions or social media limits
• sexual requirements, and
• religious observance mandates.

If you'd like to establish specific responsibilities for each spouse, you can include your wishes in a separate document or as symbolic provisions in your prenup with the understanding that they serve as statements of mutual expectations rather than legally binding obligations.

Creating a Valid and Enforceable Prenup

As prenuptial agreements become more common, the law is becoming friendlier toward them. Traditionally, judges scrutinized prenups with a suspicious eye, because they almost always involved a waiver of legal and financial benefits by a less wealthy spouse.

As divorce and remarriage have become more prevalent, and with more equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them. But judges will still set aside agreements that are unfair or otherwise don't meet state requirements for prenuptial agreements.

Because judges look carefully at prenups, it's important to negotiate and write up your agreement in a way that's clear, understandable, and legally sound. If you draft your own agreement, both you and your spouse should have separate lawyers review it and at least briefly advise you about it. In fact, some states, such as California, require this independent legal review. Even if it's not a requirement, judges are more likely to question the validity of a prenup if each spouse didn't have independent legal advice before they signed the agreement.

Getting Legal Help

If you're considering a prenup, you and your spouse should each talk to your own lawyers. Your agreement is much more likely to hold up in court if it's drafted by a legal professional. Learn more about prenuptial agreement lawyers, including how much they cost.

If you don't want or can't afford a lawyer, you might be able to create your own using an online platform, such as HelloPrenup. Learn more about how to write a fair and lasting prenuptial agreement.