What’s A “Fair” Prenup?

While a “fair” prenup is subjective, a good prenup should meet two main criteria:

1. It’s mutually beneficial to both parties
2. It’s legally sound

Let’s explore how this works when crafting your prenuptial agreement.

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What Makes a Prenup “Fair”?

What’s “fair” is often in the eye of the beholder, but in the legal and practical world of prenups, a fair agreement is one that benefits both partners and leaves each feeling empowered, not exploited.

While every relationship is unique, fair prenups generally share a few key characteristics:

1. Mutual Benefit

Each partner should walk away with something. That might be clarity around future income, reassurance about debt responsibility, or preserving family assets. The benefits may look different, but they should exist for both sides.

2. Transparency

A fair prenup begins with full financial disclosure. If either party hides assets or debts, the entire agreement could later be challenged or thrown out in court.

3. Voluntariness

No one should ever be pressured into signing a prenup. If there’s evidence of coercion or even last-minute pressure right before the wedding, a court may deem the prenup unenforceable.

4. Balance, Not Control

A fair prenup doesn’t give one partner all the control over finances or decisions. It creates a framework both people can live with, now and in the future.

Legalities: What the Law Says About “Fair” Prenups

Legally, prenups are enforceable in most states (including California) as long as they meet specific criteria.

The law doesn’t require that everything be equal, but it does require that the terms not be “unconscionable.” This is a critical legal concept that could invalidate a prenup, regardless of what both parties initially agreed to.

What is “Unconscionability”?

An unconscionable prenup is one that is so one-sided that it shocks the conscience. Courts look at whether the terms were grossly unfair at the time of signing, not just at the time of enforcement.

Here are some examples of unconscionable or unenforceable provisions:

• Waiving Spousal Support Without Proper Protections: If one party waives spousal support while also giving up career advancement or relocating for the relationship, that provision may be struck down, especially if they would be left with no financial safety net.
• Extreme Asset Control: A prenup that gives one spouse 100% control over all assets, even those earned during the marriage, without any carve-outs or compensation to the other spouse, is likely to be challenged.
• Failure to Disclose: If either party fails to disclose their assets or debts fully, the prenup is at risk of being invalidated altogether.
• Last-Minute Signing: If the prenup is presented right before the wedding, with no time for review or independent legal advice, it may not hold up, even if it’s “technically” signed. In California, the “7-Day Rule” exists to mitigate complications from last-minute signing.

The Role of Independent Legal Advice

To ensure fairness and enforceability, each person should have their own experienced family law attorney review the prenup. This avoids conflicts of interest and ensures both parties fully understand the terms. Courts often consider whether both people had the opportunity to consult counsel when evaluating enforceability.

Even better? Start early. 

The earlier you begin the prenup conversation, the more time each person has to consider the agreement carefully, negotiate the terms, and make changes without pressure.

Takeaway: A Fair Prenup = Empowerment for Both

Fair doesn’t necessarily mean 50/50, but it should be approached equitably, thoughtfully, and with mutual respect. A well-crafted prenup should reflect the values, goals, and practical needs of both people—not just the higher earner or the more financially savvy.

When done right, a prenup is a sign of maturity, transparency, and long-term thinking.

Want help crafting a prenup that’s fair, enforceable, and tailored to your relationship? Book a consultation call with me today. I’m here to help you protect your love and your future.