Have you heard that prenuptial agreements are on the rise? Once thought of as exclusive to celebrities and ultra-wealthy couples, prenups are now becoming mainstream. Millennials and Gen Z, many carrying student loans, buying homes later, or bringing kids from prior relationships, are leading the charge. But not every prenup is worth the paper it’s printed on. A poorly drafted, unfair, or improperly signed prenup can be tossed out in court, leaving you with the very financial uncertainty you were trying to avoid. Then, how do I make sure my prenup is legally enforceable? And, do courts usually uphold prenups? Keep reading to learn the answers to your questions and discover the five most important factors to consider when drafting a prenup.
1. Voluntary signatures
Most states have either adopted the Uniform Premarital Agreement Act (UPAA) or have enacted statutes with similar rules. Let’s dive into a requirement that is mandatory in every state for a valid prenup: voluntary signatures. A person must enter into a prenuptial agreement voluntarily and of their own will. That sounds obvious, but “voluntary” is one of the most litigated issues in prenup disputes. Courts look carefully for signs of duress or coercion. Did someone sign under the threat of canceling the wedding? Did they have enough time to review the agreement before the wedding? Courts consider the circumstances surrounding the signing of an agreement to determine whether or not someone entered into it voluntarily.
Though legal representation is generally not required for a prenup, it is highly recommended. Whether couples hire attorneys or not, it’s critical that there is enough time between when a prenup is presented to someone and the moment they say “I do.” Courts will look to see whether a person had a reasonable amount of time to consult an independent legal representative before their wedding day. In other words, if you present a prenup to your betrothed the day before your wedding, that fact alone might not completely invalidate a prenup but it will raise a bright red flag to the court that your partner might not have had enough time to consult with an attorney or to fully review and understand the consequences of what they were signing.
For example, in the infamous 2000 California case, In re Marriage of Bonds, baseball legend Barry Bonds’ fiancée signed a prenup the day before their wedding without independent counsel. While the California Supreme Court ultimately upheld the agreement, the backlash prompted legislative reforms requiring greater fairness and time for review. Now, Section 1615 of the California Family Code mandates at least seven days between presenting the final draft and signing if one party doesn’t have a lawyer (Cal. Fam. Code §1615). Other states, like Minnesota as of 2024, have followed suit, requiring advance review periods. The takeaway is that you should plan ahead! Don’t let your prenup be a last-minute add-on. Discuss it early, give each other time to review, and make sure the signing process feels fair and unpressured.
2. Full and honest financial disclosure
A prenup is only as strong as the transparency behind it. Courts across the country, whether in Texas, New York, or Illinois, expect both parties to lay all their financial cards on the table. That means listing assets, debts, income, and even expected inheritances or business interests. Failing to disclose material information is one of the fastest ways to have a prenup declared invalid. A classic illustration comes from the 1987 case, Casto v. Casto, where the Florida Supreme Court held that a spouse challenging a prenup can argue either that it was the product of fraud, duress, or overreaching or, alternatively, that the agreement made an unfair or unreasonable provision for them and was signed without full knowledge of the other party’s finances. That second path, which includes unfairness plus a lack of disclosure, is where many prenups stumble.
Even states that allow waivers of disclosure, like Section 4.006 of the Texas Family Code, often scrutinize whether the waiver was knowing and voluntary. Practically, this means you should create detailed schedules of assets and liabilities. These disclosures include information such as bank statements, retirement accounts, and real estate holdings. This information is included or attached to the prenup itself. Transparency is a requirement for prenups, and it has the added benefit of building trust between couples prior to marriage. That’s a nice silver lining to the legal requirement.
3. Procedural and substantive fairness
Here’s where prenups get tricky. In many states, prenups must be fair both in how they’re made, which is called procedural fairness, and in what they say, which is called substantive fairness. Let’s dive into these terms below.
Procedural fairness
Procedural fairness is one of those legal concepts that sounds intimidating, but it really comes down to how fair the process was when the prenup was created and signed. It doesn’t ask whether the actual terms of the agreement are “fair” (that’s substantive fairness) but instead examines whether the steps leading up to the signing were reasonable and gave both partners a fair chance to understand and negotiate the contract. Courts will consider multiple factors when deciding if a prenup was procedurally fair, including:
- the timing and whether each person had a reasonable opportunity to review,
- whether both parties had independent legal counsel,
- whether there was full financial disclosure
- Whether the agreement was signed voluntarily, free from duress or coercion
- whether both parties understood the terms of the agreement, and whether there were language barriers that prevented understanding
Regarding independent legal counsel, most states don’t require that each fiancé hire a lawyer, but it is highly recommended, and procedural fairness improves dramatically when both parties have their own lawyers. This ensures each side fully understands their rights and the implications of waiving them. Some states, like California, even mandate that a party waiving spousal support must have had independent counsel at the time of signing, or else that waiver is automatically unenforceable.
The last bullet point above highlights the emphasis courts put on both parties fully understanding the consequences of what they are signing. If one partner doesn’t speak English fluently, courts will consider whether there were translation services involved when determining fairness. Failure to address a language barrier can raise a red flag to the court that a party was tricked or taken advantage of. This leaves a prenup vulnerable to challenges in the future, which could lead to your agreement being invalidated due to lack of a voluntary signature.
Substantive fairness
Substantive fairness refers to the language inside the agreement. Courts will often consider whether the outcome of enforcing a prenup would be grossly one-sided (i.e., unconscionable) or potentially leave one party destitute. States weigh these factors differently. Massachusetts, for example, uses the “two-look” doctrine established in the 2002 case DeMatteo v. DeMatteo. With the “two-look” doctrine, courts assess fairness both at signing and at enforcement. Even if a prenup was fair when signed, it could be invalidated later if circumstances make it unconscionable. A situation where this could happen is if a spouse becomes disabled after they signed their prenup, and the terms of the agreement leave them with nothing. It would likely be a significant hardship for the disabled spouse to make enough income to meet their reasonable needs.
A court that applies the “second-look” test would likely deem this prenup unfair and unenforceable (DeMatteo v. DeMatteo (2002)). Other states, such as Connecticut, Colorado, North Dakota, and Iowa have similar doctrines where courts consider whether enforcing a prenup would be unconscionable or might cause a significant hardship at the time or divorce.
Texas, by contrast, focuses mainly on voluntariness and disclosure at signing. Texas courts rarely review substantive fairness unless the agreement is unconscionable at execution. Meanwhile, California blends both approaches, allowing challenges if a prenup is unconscionable or signed without independent counsel in certain scenarios. The bottom line is that prenups should be built with fairness in mind. Even if your state technically allows lopsided agreements, a prenup that “feels fair” is far less likely to be challenged or overturned later.
4. Complying with formalities
As discussed above, most states have either adopted the UPAA or have statutes with similar requirements for valid and enforceable prenups. So, formalities vary by state, but all of them require the agreement to be in writing, signed voluntarily by both parties, and include full financial disclosures. In some states, like Florida, Arkansas, and Louisiana, witnesses are required at signing. The most common and preferred form of a witness for a prenup is a notary public.
Failing to follow the specific technical rules of your state can be fatal to a prenup. In a 2020 New York case, a prenup was tossed out simply because one spouse’s signature wasn’t properly acknowledged per Section 236(B)(3) of the New York Domestic Relations Law. The court didn’t even look into the fairness of the agreement. The defective acknowledgment alone doomed the agreement (Anderson v. Anderson (2021)). To avoid this outcome, work with an attorney who knows your state’s quirks. In Minnesota, for example, the 2024 reforms require that the signatures on a prenup be notarized and witnessed by two people (Minn. Stat. § 519.11). In contrast, Texas doesn’t require notarization by statute but strongly encourages it to prevent disputes.
5. Clear, specific, and customized terms
Finally, a prenup must be clear and specific. Vague boilerplate language that was pulled off the internet will not cut it. Ambiguity breeds litigation. Judges dislike guessing what “fair division” or “shared property” means when couples never defined it in the first place. Good prenups specifically classify assets and debts as either marital or separate property, how property should be divided upon divorce, whether spousal support (i.e., alimony) is waived, limited, or provided and under what circumstances, and include provisions for life insurance, retirement benefits, or inheritances (especially important in blended families or second marriages). Customization is important because one size does not fit all when it comes to prenuptial agreements. You have the opportunity to be the author of your financial future if a divorce occurs in your life. Be specific and be precise. You’ll be thankful later.
Updating your prenups and postnups
Life is anything but predictable. Babies are born, businesses grow, inheritances happen, and spouses decide to leave their careers to stay home and raise the children. When big life events happen, review your prenup and see if you or your partner would benefit from any edits. Some couples revisit their prenup and decide to draft an entirely new document called a postnuptial agreement.
While postnups are enforceable in most states, including Texas and Florida, they do face heightened scrutiny, because married couples have a fiduciary duty to one another. Courts look closely to ensure each spouse entered into a postnup voluntarily. If circumstances in your life shift significantly, consult an attorney to determine the best way to revise your prenup.
Final thoughts on how to ensure your prenup is legitimate
To ensure your prenup will hold up in court, think of it as both a legal contract and a relationship exercise. Be open, be thorough, and don’t cut corners. Give yourselves time to negotiate, disclose everything to each other, and craft an agreement that reflects your unique circumstances, not just generic terms. And yes, invest in legal guidance. The cost of doing it right upfront is almost always less than the cost of fighting about it later. A properly drafted prenup lets you and your partner decide what happens to the assets you have each worked a lifetime to earn instead of an unknown judge. Taking control of your futures together is a great way to start your marital journey.
Originally from Memphis, Tennessee, Natori Arrindell is an experienced attorney specializing in family law, prenuptial agreements, and business law. With a dedicated practice serving individuals, families, entrepreneurs, and business owners, Natori is committed to providing comprehensive legal services to clients navigating the complexities of personal and professional relationships.
As a skilled negotiator and litigator, Natori is adept at guiding clients through challenging family-related legal issues with empathy and efficiency. Natori is also experienced in drafting, negotiating, and enforcing prenuptial agreements. By providing thoughtful guidance and facilitating open communication, she helps couples establish clear expectations and protect their assets before marriage. With a focus on preserving harmony and financial security, Natori ensures that clients enter into marriage with confidence and peace of mind.
On the business side, Natori offers comprehensive legal services to entrepreneurs and business owners. From drafting and negotiating contracts to advising on business formation and corporate governance, she serves as a trusted legal partner throughout all stages of business development. With Natori by their side, clients can navigate the complexities of the legal system with confidence and clarity.
When she’s not advocating for clients, Natori enjoys spending time with her 2 daughters.
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