A prenuptial agreement is a legally binding document signed before marriage to assist in financial planning during marriage, and in the event of divorce, how assets will be divided.
If you end up divorcing or one partner dies, the court will use your prenup to guide their decision-making about topics like who gets what assets, how to coordinate spousal support, etc.
Don’t let the “legally binding” wording scare you—prenups are straightforward and customizable.
You and your spouse-to-be decide what you will and will not include in your prenup. It’s a collaborative process that gets you on the same page while setting you up for financial success in the event of a worst-case scenario.
BEFORE getting married, what conversations about MONEY should you have with your partner?
Use this guide to discuss budgets, assets, debts, goals, joints bank accounts and more.
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Breaking Down the Cans and Cannots of Prenups
Not sure where to start? Use this table as a guide for what you can and cannot incorporate into your prenuptial agreement:
Issue |
What You CAN Include |
What You CANNOT Include |
|---|---|---|
Property Division |
Specify how property and assets will be divided in case of divorce. Define which assets are separate vs. community property. |
Waivers that leave one spouse destitute. Agreements regarding property division that violate public policy or laws. |
Debt Responsibility |
Assign responsibility for debts incurred before or during the marriage. |
Attempts to assign debts unlawfully (e.g., forcing one spouse to pay off personal debts of the other). |
Business Ownership |
Protect ownership of businesses started before or during the marriage. |
Provisions that restrict one spouse’s professional or career choices excessively. |
Spousal Support |
Waive or limit spousal support (if allowed under state law). |
Extreme waivers and/or limitations that leave a spouse without reasonable means of support or would otherwise be unconscionable (in some states). |
Inheritance Rights |
Define what happens to inheritances and family heirlooms. |
Provisions that disinherit a spouse or override a will entirely (state laws often supersede these). |
Child Support & Custody |
NONE. Prenups cannot include provisions about child custody or support. |
Any terms dictating child custody, visitation, or support (these are determined by courts in the child’s best interest). |
Lifestyle Clauses |
Reasonable lifestyle clauses (e.g., pet custody, division of sentimental items). |
Unenforceable lifestyle clauses (e.g., weight requirements, frequency of intimacy). |
Infidelity Clauses |
Include penalties for infidelity (if enforceable under state law—this is tricky, so proceed with caution). |
Any clauses that courts find against public policy or too personal to enforce. |
State-Specific Rules |
Tailor terms to comply with your state’s prenuptial agreement laws. |
Any clauses that violate state-specific laws or legal requirements. |
Key Notes About Prenups
Getting a prenuptial agreement is a relatively easy process, but look out for these key factors:
- State Laws Matter: Prenup enforceability varies by state, so always consult an attorney to ensure compliance.
- Fairness is Key: Courts will reject provisions deemed unfair, one-sided, or against public policy.
- Focus on Financials: Courts are more likely to enforce agreements about finances rather than personal behavior.
- Prenups are a Tool for Marital Success: Your prenup should be collaborative and leave you feeling stronger as a couple. Go into it as a united front to ensure you get a mutually beneficial agreement you’ll both feel great about.
I’m Here to Help
I highly recommend consulting with an experienced family law attorney, especially one who specializes in prenuptial agreements, when starting the prenup process.
Want to learn more about what to include in your prenup or how to start the convo with your SO? Check out my Talking Money Guide.