Prenuptial Agreements and Divorce
A prenuptial agreement, or “prenup,” is a contract that some couples opt into before marriage to clarify financial decisions, like how property and assets will be managed during their marriage or how they will be divided if their marriage ever ends. All US states recognize prenuptial agreements, though states vary in how they govern them. Couples have different reasons for considering a prenup, which can be used to protect personal assets, demystify financial responsibilities, or offer peace of mind in preparation for marriage.
What Is Covered in a Prenuptial Agreement?
A prenuptial agreement requires both parties to openly discuss their finances before marriage, including assets, debts, and financial expectations. This level of transparency can prevent misunderstandings and ensure that both parties are on the same page about their financial future.
Prenuptial agreements can address a wide range of financial matters, including:
- The division of marital and separate property
- Protection from debts
- Terms of spousal support (alimony)
- Management of family businesses or inheritances
- Clarification of financial responsibilities during the marriage
While prenups primarily deal with financial matters, they can also include provisions for how certain personal assets, like family heirlooms or sentimental belongings, will be handled. They do not typically cover issues like child support or child custody because issues solely relating to children are usually decided at the time of divorce.
You may find yourself wondering if your prenup will hold up through the divorce process.
Who Should Consider a Prenup
Whether or not you decide to explore one is a highly personal decision that is often influenced by the number of assets you or your spouse are bringing into the marriage or the income that one or both of you are earning when you say ‘I do.’ It is not unusual for people who have been divorced before to want a prenuptial agreement because of their previous experience.
Validity of a Prenup
For those facing the end of a marriage, you may find yourself wondering if your prenup will hold up in the divorce process. Although they are intended to be legally binding, prenuptial agreements need a very specific approach to hold up in court and should be reviewed by an attorney before signing.
Generally, prenups are enforceable throughout the United States, but governance varies by state, and they need to be reviewed to determine whether they are valid at the time of divorce. You should consult a divorce lawyer about the validity of your prenup, which often considers three factors:
Disclosure
One key to a prenup’s validity at the time of divorce is how it was obtained. The most important issue is determining that there was fair and detailed financial disclosure by both spouses at the time that a prenup was signed. Otherwise, it might be determined that the agreement was obtained through fraud or by misrepresentation of important information. To help avoid this, a solid prenup may have exhibits and other disclosure statements.
Unconscionability
A second factor in determining a prenup’s validity during divorce is whether the agreement was unconscionable, a legal term often defined as entering into a contract that no person would otherwise enter into. This is not the same as fair. Though independent legal counsel can help ensure that your interests are prioritized, typically, a prenup favors one party over the other by design. To hold up, however, they should have been signed free from things like unreasonable pressure, force, manipulation, or dishonesty.
Unforeseen Circumstances
A third factor in determining a prenup’s validity is whether your circumstances have changed to the extent that the agreement would be unfair at the time of divorce. Unforeseen changes throughout a marriage are common, so this is usually limited to a major event, such as a change in a person’s health that leaves them unable to support themself. Things like infidelity, children, or a change in financial circumstances are usually not considered unforeseen for determining the enforceability of a prenuptial agreement.
Go with Confidence
Prenuptial agreements are not just about protecting assets — they are about ensuring financial transparency, reducing conflict, and creating a strong foundation for a successful marriage. If a marriage ends, it can also be a practical tool for parting on fair and amicable terms so that you can start to rebuild and plan for your future. If you have a prenuptial agreement in place and are considering divorce, an attorney can advise you on how your unique circumstances might be impacted.