Divorce with a Prenuptial Agreement

A prenuptial agreement is a legally binding contract two people enter before they marry. This document clarifies what would happen to marital assets in the event of a divorce. While many couples don't want to think about ending their marriage before it's begun, the fact is that the divorce rate is high: About half of all marriages end in divorce. Taking this step to prepare for that possibility is a prudent and wise decision.

What happens when you divorce with a prenuptial agreement?

When a couple enters into a prenuptial agreement prior to getting married, they are essentially setting the rules for their divorce in advance. This can be extremely beneficial if the marriage ends in divorce, as it can help make the divorce process smoother and less contentious.

A prenup can set guidelines for a number of conditions for the married couple in the event of a divorce. These include alimony, inheritance, investments, and the division of assets and joint debt. By negotiating these conditions in advance, both spouses know what to expect and can avoid surprises down the road. This can be especially helpful when significant wealth or assets are involved.

Example scenarios with prenuptial agreements

Example 1: One spouse is responsible for the majority of the family's financial assets. That spouse wants to make sure those assets remain protected in the event of a divorce. A prenuptial agreement could specify that those assets would not be divided evenly between the two spouses. Rather, the spouse who earned them would get the assets in the divorce.

Example 2: One spouse inherited a family heirloom that is both sentimental and extremely valuable. That spouse wants to keep the family heirloom in their possession in the event of a divorce. This can be achieved through a prenuptial agreement that explicitly states the heirloom should remain theirs in divorce.

When is a prenup not enforceable?

Although prenups are generally considered legally binding agreements, there are situations in which a prenup is not enforceable. 

Signed under duress

One situation in which a prenup may not be enforceable is if it was signed under duress. "Under duress" means that one spouse was forced to sign the agreement against their will. If this is the case, the prenup may not be legally binding.

Incomplete asset disclosure

Another situation in which a prenup may not be enforceable is if it was signed without full disclosure of assets. This means that one spouse may have hidden some of their assets from the other spouse. The prenup would not be valid in this case. Why? Because assets were hidden, the spouse did not have a full understanding of the contract they were signing, making the prenup invalid.

Gross unfairness

A prenup may not be enforceable if it is found to be unconscionable. This means that it is grossly unfair to one of the spouses and would result in them being taken advantage of by the other. For example, if one spouse agreed to give up all rights to marital assets and to take on all marital debts, that might be unconscionable. 

Get legal help regarding a prenuptial agreement

If you are getting divorced and have a prenuptial agreement, this information will likely be added to your divorce judgment. If you would like legal advice regarding your agreement, consider booking 30 minutes or more of online time with a Hello Divorce attorney.

FAQ about prenups and divorce

Do I need a prenup?

Prenups are not required by law, but they can be helpful if you have a lot of assets or want to make sure your spouse doesn't get certain items in the event of a divorce. Prenups don't have to apply to the entire marriage estate, either. For example, you could sign a prenup for a single item, such as a family heirloom that holds sentimental value.

What happens if we don't have a prenup?

If you don't have a prenup and get divorced, you and your spouse could still make determinations about property division, child custody, child support, and spousal support in your divorce settlement. If you can’t agree on financial matters, however, state law will dictate how your property, real estate, and other assets are divided. Typically, courts divide marital property equally between spouses. However, each spouse may keep their own separate property.

Can I change my mind after signing a prenup?

Yes, you can change your mind after signing a prenup as long as both parties agree to the change. A prenup is like any other contract that can be changed if agreed to by all parties in writing.

It’s too late to get a prenup. How can I get a postnuptial agreement?

A postnuptial agreement, often called a postnup, is similar to a prenup. The main difference is that it's signed after the wedding rather than before. Postnup agreements contain similar terms to prenups and must not be unconscionable. As with a prenup, both you and your spouse will have to agree to sign a postnup.

Hello Divorce offers attorney preparation of postnuptial agreements. Click to learn about that service here. If you’re contemplating divorce and would like to learn more about what we offer, you can read about our flat-rate online divorce plans here


Divorce Content Specialist & Lawyer
Divorce Strategy, Divorce Process, Legal Insights

Bryan is a non-practicing lawyer, HR consultant, and legal content writer. With nearly 20 years of experience in the legal field, he has a deep understanding of family and employment laws. His goal is to provide readers with clear and accessible information about the law, and to help people succeed by providing them with the knowledge and tools they need to navigate the legal landscape. Bryan lives in Orlando, Florida.