Prenups cover money: property division, debts, business interests, inheritance treatment, and (within state limits) spousal support. They can't touch child custody or child support, can't contain illegal or unconscionable terms, and can't be sprung on someone at the last minute. Everything else is negotiable.
Ask ten people what a prenup covers and you’ll hear “everything if I divorce.” Ask ten divorce lawyers and you’ll hear something much narrower and more useful: a prenup covers money — and only money.
Here’s the precise line between what you can decide and what the law keeps for itself.
What a prenup CAN decide
Property division — who owns what, during and after
The core of every agreement. You can define:
- What stays separate property (what you brought in, inheritances, gifts)
- What becomes marital property and how it’s split (percentage, formula, or “grows equally”)
- How commingling works — the rule that turns “my account” into “our account” the second marital money touches it
- The house: ownership, mortgage contributions, sale terms, who stays during separation
- Vehicles, investments, valuable collections, real estate in multiple states
This is the layer that replaces your state’s default rules with your own.
Debts — premarital and marital
Student loans, credit cards, car notes, business lines: assign them explicitly. “My student loans remain mine, paid from my earnings, and never become marital debt” is one clause that prevents a six-month argument.
The business
If either of you owns or will own a company, this is the section that justifies the entire document:
- The business (and its premarital value) stays separate property
- How growth during marriage is treated
- Valuation method if divorce ever forces the question
- Terms that protect outside partners who didn’t sign anything
Spousal support — with state limits
You can cap it, define duration, structure a lump-sum buyout, or waive it — subject to your state’s rules. Several states refuse to enforce a waiver that’s unconscionable at signing or would push a spouse onto public assistance. Draft with limits in mind, not wishful thinking.
Retirement and pensions
How accounts grown during marriage are divided, and whether either spouse waives a marital share of the other’s retirement — with the QDRO mechanics handled properly. Courts enforce these; sloppy drafts create tax messes.
Life insurance
Obligation to maintain a policy naming the spouse, with stated amounts and term. A quiet but high-value clause, especially where kids from a prior marriage are involved.
Inheritance and estate rights
How the agreement interacts with wills, trusts, and your state’s elective-share laws — critical when you’re blending families and want children from your first marriage protected.
Process terms
Mediation before litigation, dispute venue, amendment procedures, and disclosure schedules. Boring paragraphs that save the most money.
What a prenup CANNOT do
❌ Child custody and parenting time
Always the court’s call, always “best interest of the child,” regardless of what anyone signed. You can write it. It won’t hold — and inviting that fight puts a target on the rest of the document.
❌ Child support terms
Same rule. Courts set child support by state formula and won’t delegate that authority to a contract signed before the child existed (or after).
❌ Anything unconscionable — especially with hidden disclosure
“No spouse shall ever work and no support shall ever be paid” is the kind of term courts void. Substantive unfairness is survivable; unfairness built on surprise is fatal. Full disclosure is the load-bearing wall.
❌ Infidelity penalties
“Cheating costs $50,000” is unenforceable in most states (Nevada being the famous outlier where couples sometimes structure property terms around it). Moral clauses make dramatic drafts and weak law.
❌ Terms signed under pressure
Presented the week before the wedding? Signed while one partner had no lawyer, no time, or was threatened with a called-off wedding? Courts call that duress — the second-leading cause of tossed prenups. Start 3–6 months out.
❌ Anything illegal or impossible
Terms requiring a spouse to commit a crime, break a court order, or remain dependent on public assistance are void on arrival.
The one-sentence version
A prenup can decide almost everything about money — and nothing about your kids, nothing obtained by force, and nothing you hid.
Everything in the “can decide” list is worth deciding while you still agree on everything. Start with your state’s rules and price range — the cost calculator takes five seconds — then run the 17-point checklist to make sure nothing’s missing.