Present application in the US
All fifty states and the District of Columbia accept prenuptial agreements in
the US, and they are valid if written in line with all applicable federal and
state laws. In the past, there was some skepticism regarding the legality of
premarital agreements when couples entered into them.
Uniform Premarital and Marital Agreement Act (UPMAA)
In states that have enacted the Uniform Premarital and Marital Agreement Act (UPMAA),
such as Florida, New Jersey, Virginia, and California, the
presumption of legitimacy and enforcement of such agreements is no longer in
doubt. The UPMAA is now enacted in 28 states and the District of Columbia. In an
increasingly mobile culture, the Uniform Law Commission (ULC) approved the
UPAA in 1983 to encourage more consistency and predictability across state laws
governing these contracts.
A prenuptial agreement that was legally signed in one state would be respected
by the courts of some other state in which the couple would file for divorce,
which is in part why the UPMAA was passed. In order to modernize and clarify
outdated state legislation and establish a standard approach to all prenuptial
and postnuptial agreements, the ULC eventually published the UPMAA in 2012. The
- modernises state laws by requiring written marriage agreements and declaring them to be valid without payment of any kind;
- provides couples with an adaptable framework for prenuptial agreements that encourages responsible preparation and well-informed choice-making;
- gives judges a framework for establishing a contract's legality in any state, regardless of where it was signed.
The rules passed by states that adopted the UPMAA do differ slightly from state
to state, but this legal framework has undoubtedly made it much simpler for
attorneys to draft legally binding marital agreements for their clients by
outlining the prerequisites. However, if the failure to disclose makes a
prenuptial agreement unfair to one spouse, it may not be enforceable on those
grounds. In contrast, no financial disclosure is necessary to waive those very
same spousal privileges in a premarital agreement signed before marriage.
Prenuptial agreements are given the same supposition of legality as any other
contract, even in states like New York that have not enacted the UPAA/UPMAA, as
was seen in the case of Bloomfield v. Bloomfield
(2001). It is not essential
for a couple entering into a prenuptial agreement to retain independent
attorneys to represent them, as long as each of the parties is competent to
understand the agreement and signs it voluntarily with the intention to be
legally bound by its terms. There are no state or federal laws obligating adults
with contractual capacity to have to recruit legal counsel in terms of being
able to enter into a prenuptial agreement.
Prenuptial agreements can restrict the couples' access to property and rights to
spousal support, but they can also ensure that any party will have the ability
to request or receive spousal support up to a specific amount. A prenuptial
agreement that has been properly prepared and carried out may be tough to annul.
A prenuptial agreement may specify what would happen in both a divorce and a
They can serve as a contract to create a will and/or delete all
of one's property rights, the right to a preset heir, the right to serve as an
executor and administrator of one's spouse's estate, and the right to a probate
homestead. A prenuptial agreement can be contested in court in a number of ways.
Prenuptial agreements in all U.S. states are prohibited from regulating matters
pertaining to children.
Role of courts in a prenuptial agreement
Prenuptial agreements are still carefully scrutinized by courts, so it pays to
execute them properly. Make a deal that is reasonable, transparent, and
straightforward. A person�s prenuptial agreement will be annulled if a court
finds that it is unjust or does not adhere to state laws.
Although it is alright to discuss and draft a simple prenuptial agreement on
their own, both parties should have their own attorneys examine the prenuptial
agreement so they may be advised on their rights and make sure it complies with
Applicability of federal laws in prenuptial agreements
The conditions that may be incorporated into a prenuptial agreement are subject
to certain federal legislation. President Ronald Reagan signed the Retirement
Equity Act (REA) of 1984 into law on August 23, 1984, clearing up any ambiguity
regarding whether ERISA superseded state divorce laws and prevented pension
plans from adhering to court orders granting a spouse a share of the employee's
pension in a divorce decree. A prenuptial agreement may include releases of
claims against the other spouse's retirement benefits arising under both state
and federal laws as a result of the marriage, such as under the REA.
When a citizen of the United States decides to marry an immigrant, they
frequently act as the fianc�'s sponsor for a visa to enter or remain in the
country. It is vital to consider the Affidavit of Support responsibility for a
U.S. sponsor who is about to publish a prenuptial agreement because the
Department of Homeland Security requires those who are financing their immigrant
fianc� to come to the U.S. on a Visa to furnish one. The U.S. Government and
the sponsor enter into a 10-year contract mandating the sponsor to provide the
immigrant fianc� with monetary assistance from their own funds. Divorce does not
cancel the sponsor's duties to the United States for support, as stated
explicitly in the I-864 form.
Enforceability of a prenuptial agreement
If properly drafted and executed, prenuptial agreements are enforceable and
frequently affirmed in court. However, a recent, well-known case has
demonstrated that prenuptial agreements are not necessarily unbreakable.
A prenuptial agreement that was signed by Elizabeth and Peter Petrakis, a real
estate tycoon worth millions of dollars, four days before their wedding, was
overturned by an appeals court in Brooklyn. After agreeing to a prenuptial
agreement that guaranteed Peter would retain ownership of all assets in the case
of a divorce, the pair were married in 1998.
Elizabeth claimed that Peter
compelled her to sign under duress by threatening to call off the wedding if she
refused. Even Elizabeth's attorney, Dennis D'Antonio, referred to the ruling as
unusual because prenuptial agreements are typically maintained in court. Hence,
airtight prenuptial agreements are more of a myth yet can definitely put the
spouses in a better condition in cases of divorce in most cases.
Renewal of prenuptial agreements
Prenuptial agreements do not expire unless they have a particular language
establishing an expiration date. Unless an adjustment or revocation is agreed to
by both parties, their prenuptial agreement will be in effect for the duration
of their marriage.
Utility of a sunset clause
A prenuptial agreement's sunset provision specifies when it will expire (often
after a certain number of years). For instance, some couples decide to put a
provision in their prenuptial agreement that declares it void if they are still
married after 25 years. A sunset provision may be liked by some, but a person
should consult an attorney before adding one. It is frequently preferable to
update or modify their prenuptial agreement after some time passes rather than
allow it to finish with a sunset provision.
Having a prenuptial agreement in
place is frequently preferable to depending on state divorce procedures since
prenuptial agreements are intended to be mutually beneficial and protect both
parties. Prenuptial agreements provide the spouses more control over issues like
property distribution and spousal maintenance, which the person might not agree
with under state law. Ideally, a person�s marriage won't end, but if it does,
having a prenuptial agreement in place can be to the person�s best advantage.
Benefits of reviewing one�s prenuptial agreement
Most people sign a prenuptial agreement and then completely disregard it. 20 or
30 years may pass before it is ever used again. However, both of the spouses�
life has probably changed significantly since the prenuptial agreement was
initially written after 30 years. People change occupations, sell and buy
property, and occasionally someone stops working entirely when children are
born. Furthermore, values and priorities might change over time. What was
significant to the two spouses when they first got married might not be
significant to them now that they've been married for ten years. They may both
become disgruntled and disappointed if something were to happen and they were
required to abide by their original prenup.
Elements to consider when updating the prenuptial agreement
One should carefully evaluate everything in their prenuptial agreement when the
time comes to revise it. One should also take into account additional parts of
one�s life that might not be currently covered. When revising a prenup, things
to think about include:
- Shared and individual property
- Shared and individual debts
- Difficulties with spousal support
- The possessions accumulated after getting married
- Need to provide for past partners' children
While both spouses should carefully explore how the terms of their prenuptial
agreement may affect child-rearing and child support should they split, the
spouses are unable to address issues like shared child custody in a prenuptial
Prenuptial agreements in same-sex marriage
In the 2015 case of Obergefell v. Hodges
(2025), the U.S. Supreme Court gave
same-sex marriages the same legal status as marriages between spouses of the
opposite sex (decided June 26, 2015). A premarital contract signed by a same-sex
couple in one state is completely binding in another state in the instance of a
divorce as a result of the Supreme Court's decision.
Oral prenuptial agreements
Because the surviving spouse had significantly modified her stance in dependence
on the oral agreement, the court of appeals in the 1990 California case of State
v. Hall (1997) upheld an oral premarital agreement in the probate of the
property of one of the parties. However, because the statutory law has changed,
it is now far more difficult to alter the nature of separate or communal
property without a formal agreement, as held in Re Marriage of Benson
There is no necessity for notarization, and parties are free to waive disclosure
beyond what is already disclosed, but doing so is recommended. If the parties
sign the agreement without an attorney, there are additional procedures, and if
the parties limit spousal support, independent counsel is required (also known
as alimony or spousal maintenance in other states). Parties have seven days to
Effect of spousal abuse on prenuptial agreements
Unless otherwise stated in the agreement, spousal abuse or adultery does not
render a prenuptial or partition agreement unenforceable or ineffective. The
majority of prenuptial or divorce agreements do not address abuse or deception.
These agreements contain clauses regarding property split and, occasionally,
spousal maintenance in the case of a divorce. An infidelity clause can be
incorporated into a unique marital contract, but the implications should be
carefully studied. If one assumes or even simply alleges, that the other has
been disloyal, it might put both of them at risk of legal action.
Impact of prenuptial agreements on the probability of divorce
Can entering into a Prenuptial agreement increase the chances of a future
It might be easy to assume that a person�s significant other does not believe in
their marriage if they ask for the signing of a prenuptial agreement. Marriage
is supposed "until death do us part," after all. However, the truth is that
divorces between spouses happen every day, and every divorce entails some sort
of property division.
If any of the two spouses decide to leave their marriage later, having a
prenuptial agreement in place might make property distribution simpler. If they
have planned beneficiaries outside their spouse, like their children from a
previous marriage, it may also make the allocation of their possessions simpler
after their passing.
The data is not definite
It is true that one can find articles on the internet to back nearly any claim.
Unsurprisingly, a lot of articles claim that entering a prenuptial agreement
increases the likelihood that a couple would divorce. But be cautious about what
one uncovers since sometimes these publications simply convey a portion of the
story or lack the evidence necessary to back up their assertions. When looking
for information on a subject that might be contentious, one will come across
equally as many conflicting reports. Prenuptial agreements offer couples a sense
of confidence about what will occur in the case of a divorce or the death of one
partner, according to some academics, which strengthens relationships.
The likelihood of divorce is influenced by one�s perspective towards the
Prenuptial agreement proponents and opponents agree on one thing: a couple's
chance of divorcing will depend on how they see their prenuptial agreement,
their marriage, and the risk of divorce. A person will probably be more inclined
to think about divorce when problems in the marriage develop if they reluctantly
sign a prenuptial agreement and believe that their partner is less devoted to
the union as a result. Contrarily, a couple that is in agreement with their
prenuptial agreement may be more willing to make concessions and cooperate,
which can help them resolve problems in their marriage that would otherwise lead
A prenuptial contract as a safety measure
To declare with certainty if prenuptial agreements are associated with divorce,
there is not enough credible evidence. Depending on the disputes that develop in
a person�s marriage and how the two spouses handle them, any of the two spouses
may decide to obtain a divorce or not. Having a prenuptial agreement in place
can help them avoid having the court divide their assets for them in the event
that they do get divorced, saving them time, money, and misery.
A new couple who benefits from the financial security and reassurance of a
prenuptial agreement could even encourage others to feel comfortable giving them
money since they have decided to ensure the reliability of their asset
distribution. When there is no guarantee that these assets won't end up in the
hands of the in-laws in the event of a divorce or the passing of the spouse who
is the actual beneficiary of the prenuptial agreement, estate attorneys report
that there is a trend of opposition to establishing unconditional inheritance
provisions for children and grandchildren. In this way, having a prenuptial
agreement in place may help to ensure that a young couple will gain more from
trust or inheritance arrangements.
In light of this, setting up a prenuptial agreement meeting with a competent
attorney for a young pair who are still "finding their way" economically may
prove to be one of the most appreciated wedding registry presents a relative
could provide. It may turn out that what initially appears unromantic, overly
realistic, or even superfluous is the greatest gift of security.
A prenuptial agreement need not be difficult to draft. A prenuptial agreement
can give both couples financial stability and peace of mind before the marriage
with only a modest time commitment. Yet prenuptial agreements are not airtight
and not always enforceable in a court of law. The creation and execution of
prenuptial agreements increasingly raise significant international legal
difficulties as more people considering marriage consider marrying people from
other countries or residing in more than one country.
As a result, it will be
more crucial for professionals and judges to comprehend the substantive laws of
each nation or state concerned as well as the doctrines applied to settle
disagreements over international jurisdiction and the applicable law. These
questions are still valid areas of research and need greater clarification to
improve the application of the prenuptial agreement.
Furthermore, although it is common knowledge that having a prenuptial agreement
is advantageous, many people are still hesitant to obtain one because they fear
their future spouse will view it negatively. However, specialists in divorce
mediation claim that a prenup is advantageous for all parties, not simply the
one making the request.
Common Queries Resolved
When should a prenuptial agreement be signed?
- What is a prenuptial agreement?
A prenuptial agreement, sometimes known as a "prenup," is a legal contract
created by a couple before to marriage that specifies how their assets would be
split in the case of divorce. In a conventional prenuptial agreement, assets
such as property, debts, and income are often addressed to help couples prevent
any financial surprises if the relationship were to end in the future. When one
spouse already possesses more assets than the other, or is expected to do so in
the future, prenuptial agreements are more likely to be made. For instance,
people who inherit a lot of money, landowners, company owners, couples getting
married later in life, or those who could be starting a second marriage.
- What purpose does a prenuptial agreement serve?
The main goal of a prenuptial agreement is to provide couples clarity on how
their assets would be distributed in the event of a breakup, and the specifics
depend on the persisting situation.
Common prenuptial agreement clauses include:
- safeguarding a child's inheritance or particular assets
- safeguarding inherited funds, property, or savings
- allowing both of them to have a role in how assets are divided if they decide to get divorced
- allowing one partner to maintain complete ownership of the company
- defending a person against their spouse's debt.
- Why is a prenuptial agreement necessary?
If a person wants to decide how their property and finances will be handled
throughout their marriage and what will happen to them if they get divorced,
they might think about signing a prenuptial agreement (commonly called a prenup)
before they get married. The same process may be used to create a
pre-registration agreement if they�re starting a civil partnership. In the case
of a divorce, a prenuptial agreement can assist them in protecting their and
their spouse's money. Prenuptial agreements provide some predictability in
situations where they would want to decide in advance how their assets will be
divided in the event of a divorce rather than relying on the judgment of the
- What information ought to be in a prenuptial agreement?
Prenuptial agreements are made to meet the needs of both their and their future
spouse and are used to safeguard a variety of assets. Typically, they will
include a list of all of their assets as well as information on how they both
want them to be handled throughout their marriage and how they will be divided
if their relationship ends. Their prenuptial agreement should include any assets
that they would like not to have divided or shared between them and their spouse
in the event of a future divorce. Typical prenuptial agreement provisions
include property held in either joint or sole names, accumulated savings in bank
accounts, enhanced bonding, inheritance, shares and stocks, a pension fund,
income, business objectives
Making a list of all the assets they hold, both individually and jointly, and
deciding how they want them to be handled in the case of divorce are two of the
best places to start when drafting a prenuptial agreement.
The spouses can specify how the assets will be divided if one partner maintains
them, and how much of each one will go to each spouse when they sign a
prenuptial agreement. In the case of a divorce, a prenuptial agreement might
stop their spouse from automatically inheriting a portion of their assets.
- What is prohibited from being in a prenup?
Premarital agreements can cover a variety of assets, but there are stringent
limitations on what can be included. Prenuptial agreements may not be accepted
seriously in court if these are not taken into account before signing.
The following topics cannot be included in a prenuptial agreement, custody of
the child, including visits, education, upbringing in religion, child
assistance, private issues, and unfair or illegal practices.
- Can a prenuptial agreement save one�s pension?
One can safeguard this with a prenuptial agreement since many people who get
married later in life or a second time do not want to risk losing any of their
pension in a divorce settlement.
Does a prenuptial agreement safeguard potential future income?
Yes, one may include a future income clause in their prenuptial agreement if
they wish to safeguard any potential future income.
- How long is a prenuptial contract effective?
A prenuptial agreement is a legal compact between a person and their future
spouse that is valid for the whole term of their union.
- Are prenuptial agreements enforceable?
Yes, they are enforceable by the U.S. courts of law, but these are not airtight
agreements and are enforceable as per the court�s interpretation.
- How successful are prenuptial agreements?
Prenuptial agreements are extremely useful for anybody who wishes to safeguard
whatever assets they bring into a marriage and are not only for the wealthy and
- Is it possible to change one�s prenuptial agreement after being married?
Once it has been agreed upon or after a person gets married, a prenuptial
agreement cannot be changed. If a person wishes to modify the conditions,
postnuptial agreements are an excellent choice. Although it was drafted after
marriage, it is handled legally in the same manner as prenuptial agreements.
A prenuptial agreement must be executed at least 28 days before the wedding, and
both parties' financial situation should be stated.
When will a prenuptial agreement not be upheld by the court?
A prenuptial agreement must be deemed fair to both parties in order for the
arrangement to be sustained in court. This requires both of the spouses to
completely disclose their financial situation and seek impartial legal counsel
on their agreement.
Some of the aspects that will improve a premarital agreement's chances of being
sustained in legal proceedings are:
How can one create a prenuptial agreement?
- It has to be publicly accessed.
- The repercussions must be understood by both parties.
- It shouldn't be unjust and should uphold the parties' agreement within the current conditions.
For the court to give a person�s premarital agreement the greatest chance
possible, both parties to the marriage must seek independent legal counsel and
have a prenuptial agreement prepared by a licensed family law specialist.
Understand the contract in full and voluntarily sign it; thoroughly revealing
all of their assets and property.
Can prenuptial agreements increase the chances of a future divorce?
It might be easy to assume that one�s significant other does not believe in the
marriage if they ask the signing of a prenuptial agreement. Yet, there is no
substantial data to support the argument that prenuptial agreements lead to a
greater chance of divorce. a couple's chance of divorcing will depend on how
they see their prenuptial agreement, their marriage, and the risk of divorce. A
prenuptial agreement is purely a safety net for the appropriate distribution of
possessions between partners in the case of a divorce.
The information contained in this post is provided for informational
purposes only, and should not be construed as legal advice on any subject
matter. Kindly seek legal or other professional advice since the contents of
this post contain general information and may not reflect current legal
developments or address your situation. The author of this post accepts no
liability from the contents of this post.
Written By: Tejaswini Kaushal,
- Uniform Premarital Agreement Act, Legal Information Institute, https://www.law.cornell.edu/wex/uniform_premarital_agreement_act (last visited July 6, 2023).
- Civil Practice And Procedure, 2022,� 61.079, Act of Florida, 2022 (United States),
- Uniform Premarital and Pre-Civil Union Agreement Act, 1989, � 37:2-31, C. 89, Act of New Jersey, 1989 (United States).
- Code of Virginia, 1950, ch 8, Act of Virginia, 1989 (United States),
- Family Code, 1992, art. 2, Act of California, 1992 (United States).
- Uniform Law Commission, https://www.uniformlaws.org/home (last visited July 16, 2023).
- 764 N.E.2d 950 (2001).
- N.Y. Prenup Battle Winner 'Destroyed' Family With Affair, Cousin Says, ABC News,
https://abcnews.go.com/blogs/headlines/2013/04/n-y-prenup-battle-winner-destroyed-family-with-affair-cousin-says (last visited July 12, 2023).
- 135 S.Ct. 2584 (2015).
- 557 N.W.2d 778 (1997).
- 545 N.W.2d 252
2nd year B.A. LL.B. (Hons.) student,
Dr. Ram Manohar Lohiya National Law University, Lucknow, Uttar Pradesh