About 15% of U.S. marriages have a prenup. That means if you are part of the 15% crowd and get a divorce, you may have some questions. Like… what now? How do I “use” my prenup? Let’s back up a bit. A prenuptial agreement, or a prenup, is a document you can create with your future spouse to outline various financial obligations in the event of a divorce. And if you do get a divorce, prenups tend to make the whole process that much smoother. This article will outline how to “use” your prenup (a.k.a., enforce it), the reasons prenuptial agreements get challenged, what happens if your prenup is invalidated, and more. Let’s dive in!
I’m getting divorced…what do I do now?
Take a deep breath. It’ll be okay! Here’s what to do if you are getting a divorce and you have a prenuptial agreement:
- Find and review your prenup: This is crucial. Locate the original document, whether it’s digital or physical, and read it thoroughly to understand the terms you agreed upon. If you got your prenuptial agreement through HelloPrenup, you may be able to locate your signed agreement directly through your account (depending on your state).
- Check for an ADR clause: If you have a prenuptial agreement that has an alternative dispute resolution (“ADR”) clause, you’ll want to understand if you are required to start mediation to work out the divorce.
- Consult a divorce lawyer: You’ll need to bring the original copy of the agreement to a divorce attorney to get tailored advice on the next steps. You can explain your situation and discuss the prenup with your lawyer.
- Get your questions answered: Your divorce lawyer can clarify any confusing points in the prenup and guide you on how it impacts your divorce proceedings.
Your next steps will vary depending on your situation. If you and your partner agree on everything and both want the prenup to hold up, things will go pretty smoothly and quickly.
So, how do you enforce your prenup?
If you have a prenuptial agreement and are also facing a divorce, you may be wondering, “How do I ensure the terms of the prenup are followed?” The process depends on whether you and your spouse are still in agreement about the prenuptial agreement. Here are the various routes for enforcement:
Option 1: Mutual agreement
Ideally, you both abide by the original terms of your prenup and don’t try to challenge any of its terms or validity. This avoids legal intervention, making it the most cost-effective solution. Prenups created collaboratively tend to be upheld more easily for this exact reason–people are in agreement and happy with the contract they signed. This approach can streamline the divorce process and reduce emotional strain.
Option 2: Renegotiation
If you and your partner disagree on certain aspects of the prenuptial agreement, you can renegotiate. This may involve lawyers, which ultimately involves adding fees. Renegotiation might be suitable if circumstances have drastically altered since you signed the original agreement. If you are not willing to renegotiate the terms of the prenuptial agreement, then what happens next will depend on whether your partner is willing to litigate or not.
Option 3: Litigation
The most expensive and stressful path is to litigate the prenup’s terms and/or enforceability. Expect to spend thousands on legal fees. Due to the cost, most couples settle before going to trial and getting to this stage. This underscores the value of Option 1– agreeing to the prenup’s terms. If you and your partner are going the litigation route, then each of you will present your side to the court, and a judge will decide on the matter. Again, this is a lengthy and expensive process that not many people do.
Reasons prenuptial agreements get challenged
So, why do you hear that prenuptial agreements get thrown out in court? Don’t worry; it doesn’t happen super frequently. Most states and courts tend to favor prenups, so they generally lean towards upholding them. However, it’s not impossible for one spouse to challenge a prenup to get it thrown out or partially thrown out. Let’s discuss the reasons prenups get challenged:
Lack of proper financial disclosure
Financial disclosure means sharing all your financial information with your partner. This includes the full values of each person’s assets, debts, income, businesses, accounts, and potential inheritances. Don’t leave anything out! Most states agree that if one spouse didn’t provide full and fair financial disclosure, the prenup could be thrown out. The reason for this is that financial disclosure helps each party make an informed decision about the agreement so they can fairly negotiate and decide on terms. Without understanding each person’s financial situation, it can be hard to agree on terms.
Duress and coercion
A prenup must be signed voluntarily for it to be valid. Duress and coercion invalidate voluntariness. If one party can prove they signed the agreement under duress or coercion, a court will likely throw out the prenup. Here’s what to know:
- Duress: This is typically considered an aggressive amount of force or threat to sign the prenup, typically under emotional or physical pressure.
- Coercion: More subtle, like continuous persuasion or manipulation that compromises your free will. However, innocent daily badgering to sign an agreement may not be enough to constitute coercion. It really just depends on the situation.
Let’s look at a real-world case where a court threw out an agreement because it was created under coercion or duress. In Matter of Marriage Norris, the husband introduced the prenup for the first time in a motel room right before the couple was about to get their marriage license. The wife testified she felt pressured and believed the husband would not marry her if she didn’t sign it, thus signing it without a full understanding of his significant assets or the rights she was waiving and without an opportunity to seek legal counsel. The court said these circumstances were sufficient to show coercion because of the timing of the agreement, coupled with her lack of ability to hire an attorney and the lack of proper financial disclosure from the husband.
Failure to meet state formalities
Each state has specific requirements for a prenup to be valid. Almost all states require a written and signed agreement. Some also require notarization, witnesses, or specific legal language. For example, let’s say you live in a state where notarization and witnesses are required. If you do not get your prenup witnessed and notarized properly, then your agreement is at risk of being thrown out for not meeting the state formalities requirements. Another example is in New York, where the state now (as of 2025) requires specific language to be put into the alimony waiver clause (if you are waiving alimony). This means if you do not include this language, you could be at risk of getting your entire prenup or alimony waiver clause thrown out.
Unconscionability
Unconscionable means extremely unfair, unreasonable, or one-sided. Many courts describe unconscionable as meaning “shocking the conscience” of the court. Whether a prenuptial agreement is conscionable or not can apply to the terms themselves or the circumstances surrounding its creation (substantive versus procedural unconscionability). Courts may look at whether it was unfair when it was signed, OR if circumstances have changed drastically since, making it unfair at the time of divorce–it depends on the state laws.
Real-world example of unconscionability: Justus v. Justus
This Indiana case shows how changed circumstances can make a prenup unconscionable. In Justus v. Justus, the prenuptial agreement guaranteed the wife $500,000 in alimony. When the couple signed this document, the husband was worth $31 million. By the time of divorce, his net worth was $300,000. Requesting that the husband pay the wife $500k in alimony when he only had $300k is totally unreasonable (i.e., unconscionable). The court ultimately ruled that this significant change made the agreement unconscionable and, therefore, unenforceable.
Other unique state requirements that can get a prenuptial agreement thrown out
State laws heavily influence what can get a prenup thrown out. Some states have surprising restrictions. For example, California won’t enforce spousal support changes in a prenup unless each person has their own lawyer. Colorado also demands specific wording or legal representation if the prenup seeks to waive certain rights. Without these specific state requirements, a prenuptial agreement may be at a higher risk of being thrown out by a court.
What happens if my prenup is invalidated?
If, in the rare event, your prenup is completely invalidated, then your divorce will proceed under the default state laws. That means the way your property will be divided up according to the state laws. These laws will also dictate whether or not alimony is appropriate and how much/for how long. What are the default state laws? Well, again, every state is different, but generally, there are two frameworks of property division in the U.S., so if your prenup is invalidated, your property will be split up in one of two ways: through community property laws or equitable distribution laws.
Community property laws generally say everything acquired during the marriage is split 50/50 (with a few exceptions), and equitable distribution laws say that your property will be split equitably, not necessarily equally, which may or may not include premarital assets. Equitable distribution states give the court more discretion to use the circumstances of the situation to divvy up the assets. Equitable distribution courts utilize a list of state factors like the length of the marriage, the age of the spouses, and the contributions of each spouse to make property division decisions.
Prenups do not affect child support and child custody
One thing to understand is that virtually all states limit the ability to include clauses about child support and child custody in prenups. It’s almost unheard of for a state to uphold child support and child custody clauses in prenups (with a few exceptions, like in New York). What does this mean? It means that regardless of whatever your prenup says, your child support and child custody are not dictated by what is said in your prenup. Instead, a court will rule on how much child support is necessary and how custody should work according to the best interests of the child. This is because the future is unpredictable–what could be best for a child five years ago may not be the case at the time of your divorce. The priority should be what is in the children’s best interest at the time of divorce, not at the time of the prenup creation. In addition, child custody and support are the rights of the child–not the parents.
The bottom line
Facing divorce with a prenup can be complicated. It’s vital to understand that while prenups typically simplify asset division and financial matters, they can be challenged in rare instances. Make sure to reach out to a divorce attorney ASAP and locate your prenup to start getting the ball rolling. But don’t worry, getting a prenup thrown out is not easy to do. As long as you followed your state laws in creating your prenuptial agreement, you should be in the clear. And remember that prenups cannot dictate child support or custody arrangements. Courts will always make those decisions based on what’s best for the children involved, putting their welfare above any prior contractual agreements.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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