What Happens If You Sign a Prenup and Get Divorced? The Power (and Limits) of Prenuptial Agreements

by LegalFix
Posted: June 15, 2024
prenuptial agreement

Getting married can feel like a romantic whirlwind, but it’s always wise to consider practicalities and what might happen if the marriage ends. A prenuptial agreement — often called a "prenup" for short — can be a valuable tool for couples who want to establish clear financial expectations in the unfortunate event of a divorce. But what actually happens to a prenup when a marriage dissolves? Does it automatically dictate everything? Today, we’ll examine how a prenup affects the division of assets, spousal support, and other crucial matters during a divorce. 

The Power of a Prenuptial Agreement

A prenup is a legally binding contract created before marriage that outlines how certain financial issues will be handled in the event of a divorce. Think of it as a roadmap for dividing assets and debts if things don't work out. (You can also sign a similar agreement after marriage, called a “postnup.”)

While prenups can't guarantee a smooth divorce, they can provide clarity and potentially save a lot of legal wrangling down the road.

Here are some key areas typically covered in a prenup:

  • Division of Assets: This clarifies how premarital assets (those owned by each spouse before the marriage) and marital assets (acquired during the marriage) will be divided in a divorce. This can be especially important to a person entering marriage with significant premarital assets, such as a family business or a cherished inheritance—and for high earners who have invested many years in building a business or developing a valuable skill set. The prenup can protect these assets and earnings and ensure they remain separate property if the couple splits up. 

  • Debt Allocation: The prenup can specify how existing and future debts will be handled. Will they be considered separate or become marital debt?

  • Spousal Support (Alimony): A prenup can limit, modify, or even waive spousal support in certain situations. However, it's important to note that some states have limitations on prenuptial waivers of alimony, particularly in cases of long marriages or if one spouse is financially dependent on the other.

  • Inheritance Rights: The prenup can specify how inheritances received during the marriage will be treated.

It's important to remember that for a prenup to be enforceable, it must meet specific legal requirements. This typically involves having the agreement drafted by an experienced family law attorney, ensuring full financial disclosure by both parties, and demonstrating fairness in its terms.

The Limitations of a Prenup

So, you signed a prenup, and now you're facing divorce. What is the effect of the prenup? Will it take care of everything for you? Although your prenup may determine many financial issues, there are limits to its power. For one thing, the document will only dictate rules for things included in its writing—i.e., if you didn’t include a section about new inheritances, those considerations must be handled separately.

Child Support and Custody

It's important to remember that prenups cannot dictate child support or custody arrangements. These are always determined by the court based on what's in the best interests of the child. 

Can a Prenup Be Challenged?

Although prenups offer valuable protection, they aren't invincible. A prenup's enforceability can be challenged if there was fraud or duress involved. Additionally, courts may deem a prenup "unconscionable" if its terms are unfairly one-sided due to lack of disclosure or significant changes in circumstances. 

For instance, a prenup drafted before a long marriage where one spouse stayed home to raise children might be challenged if that spouse now faces financial hardship. Major life events that significantly alter finances, like a disability, could also be grounds for a prenup challenge. 

Making Your Prenup Fair and Enforceable

To maximize the enforceability of your prenup, it’s essential to follow the right steps. First, consult a qualified family law attorney to draft the agreement. Their expertise ensures it meets all legal requirements and fairness standards. Second, ensure complete financial disclosure by both parties, including income, debts, assets, and liabilities. 

Finally, remember that life changes. Revisiting and potentially updating the prenup over time, especially after major events like having children or receiving a significant inheritance, can help guarantee it remains enforceable and reflects your evolving financial situation. 

Know Your Rights with LegalFix

Prenuptial agreements can be a valuable tool for couples planning a future together. They offer clarity and potential financial security in the event of a divorce. However, it's important to remember that prenups have limitations. They can't guarantee a smooth divorce, and they can be challenged under certain circumstances. 

Whether you’re trying to understand what happens if you sign a prenup and get divorced or just want a better understanding of how our legal system works, LegalFix is your go-to source for free legal information. You can find helpful articles and state-specific explanations of nearly 1,600 legal topics, or browse state and federal statutes to better understand the laws that affect you. Just visit to find all this content—and check back often for more valuable legal products and services coming soon.