The agreement you already have
Every married couple has a property agreement. Those without a written one get the version their state legislature drafted. Nine community property states treat most of what either spouse earns during the marriage as owned half and half. The other states use equitable distribution, under which a judge divides marital property in a way that is fair and not necessarily equal. A prenuptial agreement replaces those default rules with your own.
It deserves serious thought if either of you owns a business or a home, expects an inheritance, carries significant debt or has children from an earlier relationship.
What it can and cannot do
An agreement can define which property stays separate, including growth in its value. It can decide how marital property and debts are divided, protect a business or a family inheritance, and in most states set or waive spousal support within limits.
It cannot decide child custody or child support, because courts settle those according to the child's interests at the time of separation. Clauses about chores, weight or fidelity penalties are generally ignored. Terms that would leave one spouse destitute are vulnerable everywhere.
What makes it hold up
- The agreement is in writing and signed by both people before the wedding.
- Each person makes full written disclosure of assets, debts and income, usually in attached schedules.
- Each person signs voluntarily, with enough time to think, which is why a document presented the week of the wedding invites a claim of duress.
- Each person has an independent lawyer, which few states strictly require and which judges weigh heavily.
- The terms are not grossly one-sided when signed or, in some states, when enforced.
State rules vary in the details, and at least one state requires seven days between the final draft and the signing. A straightforward agreement costs a few thousand dollars in total for two lawyers.
Living with it
A prenuptial agreement protects separate property only if you keep it separate. Depositing an inheritance into a joint account, or using premarital savings to pay down a jointly titled house, can convert it into marital property regardless of what the document says. Many couples add a sunset clause that ends the agreement after a set number of years. Married couples can sign a postnuptial agreement on similar terms, although courts examine those more skeptically.
Tip Raise the subject as a joint planning exercise, with both of you listing what you own and owe. The disclosure conversation is worth having even if you never sign anything.
