What a Prenup Can Govern
A prenuptial agreement is a contract between prospective spouses that addresses financial matters in event of divorce or death. It can specify how property is divided (overriding the state's default community or equitable-distribution rules), allocate debt, govern spousal support (including waiving it), and clarify what is separate property. For example, a prenup might say that one party's premarital business remains their separate property and is excluded from division. It can also address inheritance, life insurance beneficiaries, and lifestyle provisions (though these latter clauses are less enforceable). A prenup cannot determine custody or child support (courts will not enforce such provisions, as the child's best interests cannot be contracted away).
Enforceability and Validity Requirements
Prenups are enforceable if the parties have full disclosure of assets, separate counsel (at least one party should have an attorney, ideally both), and no duress or unconscionability. A prenup signed weeks before the wedding with no lawyer and hidden assets is vulnerable to challenge. The agreement must be in writing and signed by both parties. Most states apply the Uniform Premarital Agreement Act (UPAA), which sets standards for enforcement. A court may enforce a prenup even if it is unconscionable (very unfair) if the party challenging it did not have independent legal counsel and did not have adequate disclosure. This protective burden aims to ensure prenups reflect genuine consent, not pressure or surprise.