What is included in a child custody agreement?

A comprehensive child custody agreement (also called a parenting plan) should include: (1) legal custody — which parent(s) have authority to make major decisions about the child's education, healthcare, and religious upbringing; (2) physical custody — where the child primarily resides; (3) a detailed visitation schedule for the non-custodial parent, including weekdays, weekends, and overnights; (4) a holiday and vacation schedule; (5) transportation arrangements for exchanges; (6) communication provisions (phone calls, video chats); (7) right of first refusal when the custodial parent is unavailable; (8) relocation restrictions; and (9) a dispute resolution process.

How is alimony determined?

Alimony (spousal support or maintenance) is determined by courts based on multiple factors including: the length of the marriage, each spouse's income and earning capacity, the standard of living during the marriage, each spouse's age and health, contributions to the marriage (including homemaking and supporting the other spouse's career), and the division of marital property. Some states use formulas (e.g., 30-40% of the difference in incomes), while others give judges broad discretion. Alimony may be temporary (during divorce proceedings), rehabilitative (to support career development), or permanent (for long marriages with significant income disparity).

What is the difference between legal and physical custody?

Legal custody refers to the right and responsibility to make major decisions about a child's upbringing — including education, healthcare, religious training, and extracurricular activities. Physical custody refers to where the child actually lives day to day. These can be awarded jointly or solely. Joint legal custody means both parents share decision-making, while joint physical custody means the child splits time between both homes (not necessarily 50/50). Most courts favor joint legal custody unless one parent is unfit, while physical custody arrangements vary based on the child's age, parents' work schedules, proximity of homes, and the child's preferences (if old enough).

How do I modify a custody agreement?

To modify a custody agreement , you must demonstrate a "material change in circumstances" since the original order — such as a parent relocating, a change in work schedule, a child's changing needs as they age, or safety concerns. If both parents agree to the modification, they can submit a stipulated agreement to the court for approval. If they disagree, the requesting parent must file a motion with the court and prove the change is in the best interests of the child . Minor schedule adjustments may be handled informally, but changes to legal custody, primary residence, or support amounts should always be documented and filed with the court to be legally enforceable.

Can I write my own divorce settlement without a lawyer?

Yes, couples can negotiate and draft their own divorce settlement agreement (also called a marital settlement agreement) without hiring attorneys. This is common in uncontested divorces where both spouses agree on property division, debt allocation, spousal support, and child custody/support. Legal Tank's templates provide a comprehensive framework that covers all the necessary provisions. However, you should consider consulting an attorney if: there are significant assets or complex property (businesses, retirement accounts, real estate); there is a significant income disparity; children are involved and custody is contested; or there are allegations of domestic violence. At minimum, having the final agreement reviewed by a professional ensures nothing critical is missed.

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Q: Are prenuptial agreements enforceable?

Yes, prenuptial agreements are enforceable in all 50 states when they meet certain requirements: (1) the agreement must be in writing and signed by both parties; (2) both parties must provide full and fair disclosure of their assets and liabilities; (3) each party should have the opportunity to consult independent legal counsel; (4) the agreement must not be unconscionable (grossly unfair) at the time of enforcement; (5) neither party can be coerced or pressured into signing. Prenups cannot waive child support obligations or make provisions that violate public policy. Courts in some states also require the agreement to be signed well in advance of the wedding to ensure it was voluntary.

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When Do You Need a Prenuptial Agreement?

You or your fiance own significant pre-marital assets — a home, investments, retirement accounts, or a business — and you want to clearly define them as separate property that will not be subject to division in a divorce, rather than risking commingling that could convert them to marital property under your state's equitable distribution or community property laws.

One or both partners are entering the marriage with substantial student loans, credit card debt, business debts, or tax obligations, and you want a written agreement confirming that each spouse's pre-marital debts remain their individual responsibility and cannot be pursued against the other spouse's assets.

You own a family business, professional practice, or hold equity in a startup, and you need to protect the business from being divided, valued, or awarded to your spouse in a divorce proceeding. A prenuptial agreement can establish that the business and its appreciation in value remain separate property.

You have children from a prior relationship and want to preserve specific assets or inheritance rights for them, preventing those assets from becoming part of the marital estate that could be claimed by a new spouse. This is particularly important when coordinating with an existing living trust form or estate plan.

You and your partner want to establish clear financial expectations before marriage — how household expenses will be shared, whether joint accounts will be maintained, how property acquired during the marriage will be titled and managed, and what happens financially if the marriage ends through divorce or death.

One partner is significantly wealthier than the other, and both parties want a transparent agreement that protects the wealthier spouse's assets while also providing fair financial provisions for the less wealthy spouse, such as spousal support, a lump-sum payment, or property settlement in the event of divorce.

What Should a Prenuptial Agreement Include?

Full Financial Disclosure Schedules

Attach complete, honest financial disclosure schedules listing each party's assets, liabilities, income, and expenses as of the date of the agreement. Courts require full disclosure as a condition of enforceability — a prenup executed without adequate financial transparency can be set aside as unconscionable. Each spouse should list real property, bank accounts, investment accounts, retirement accounts, business interests, vehicles, valuable personal property, and all debts.

Separate Property Classification

Identify all assets each party brings into the marriage that will remain their separate property regardless of what happens during the marriage. This includes pre-marital assets, expected inheritances, gifts received from third parties, and any income, appreciation, or proceeds generated by separate property. Clearly distinguishing separate from marital property is the core function of most prenuptial agreements.

Marital Property Treatment

Define how property acquired during the marriage will be classified and divided. Options include treating all marital earnings as community property (shared equally), as equitable property (divided fairly but not necessarily equally), or maintaining separate ownership of each spouse's earnings. Address specific categories including real property purchased during the marriage, joint investments, retirement contributions made during the marriage, and property purchased with commingled funds.

Spousal Support (Alimony) Provisions

Specify whether spousal support will be paid in the event of divorce and, if so, the amount, duration, and conditions. Options range from a complete waiver of alimony to a predetermined formula based on the length of the marriage and income differential. Be cautious: courts in many states will not enforce alimony waivers that leave one spouse destitute or on public assistance, so include minimum provisions that a court would consider fair.

Business Interest Protection

If either party owns a business, include specific provisions addressing the classification of the business as separate property, whether the non-owner spouse has any claim to business appreciation during the marriage, how the business will be valued if valuation becomes necessary, and whether the non-owner spouse waives any right to participate in business operations or management decisions. This protection is especially important for partnerships with LLC operating agreements that may restrict ownership transfers.

Debt Allocation

Specify how pre-marital and marital debts will be allocated between the spouses. Common provisions include each spouse retaining responsibility for their own pre-marital debts, sharing responsibility for joint debts incurred during the marriage, and establishing rules about who is responsible for debts incurred individually during the marriage (such as credit cards in one spouse's name only).

Estate and Inheritance Rights

Address each spouse's rights to the other's estate upon death. While most states provide a surviving spouse with an elective share (typically one-third to one-half of the estate), a prenuptial agreement can modify or waive these rights. Coordinate these provisions with each party's will and any existing trust documents to avoid conflicts between the prenup and the estate plan.

Sunset Clause and Amendment Provisions

Include provisions specifying whether the agreement has a sunset date (automatically expires after a certain number of years of marriage), how the agreement can be amended or revoked (typically requiring a written amendment signed by both parties), and whether the terms change based on the length of the marriage or the birth of children.

Signature Requirements

E-Signature Valid · Notarization Recommended

Prenuptial agreements accept e-signatures. Notarization is strongly recommended and required in some states for enforceability.

Some states require notarization. Independent legal counsel for both parties is strongly recommended for enforceability.

Related Family Law Templates

A prenuptial agreement is often used alongside other family law documents. Depending on your situation, you may also need:

Child Custody Agreement Template

Family Law

Free Divorce Settlement Agreement Form

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How to Fill Out a Prenuptial Agreement

Complete Financial Disclosure for Both Parties

Before drafting any substantive terms, both parties must prepare comprehensive financial disclosure schedules. List every asset, debt, income source, and financial obligation for each person. Attach supporting documentation — account statements, property appraisals, business valuations, and tax returns. Incomplete disclosure is the single most common reason courts invalidate prenuptial agreements, so err on the side of over-disclosure.

Classify Separate and Marital Property

Working from the financial disclosures, identify which assets each party considers separate property and how you will classify property acquired during the marriage. Address specific scenarios: What happens if separate property appreciates in value? What if marital funds are used to improve separate property? What if one spouse contributes to the other's retirement account? Clear answers to these questions prevent the most common prenup disputes.

Negotiate Spousal Support Terms

Discuss and agree upon alimony provisions that both parties consider fair and that a court would likely enforce. Consider a sliding scale based on the length of the marriage — for example, no alimony if divorced within the first 3 years, and increasing support for longer marriages. Factor in each spouse's earning capacity, career sacrifices made for the marriage, and the standard of living established during the marriage.

Draft Business and Debt Provisions

If either party owns a business, negotiate and document how the business will be treated — as separate property, with or without claims to marital appreciation. Establish a valuation methodology (book value, fair market value, or a formula) that will be used if the business must be valued in a divorce. Address each party's pre-marital debts and establish rules for debt incurred during the marriage.

Coordinate with Estate Planning Documents

Align the prenuptial agreement's death-related provisions with each party's existing estate plan. If the prenup modifies or waives the surviving spouse's elective share, ensure your will, living trust, beneficiary designations, and other estate documents reflect the same intent. Inconsistencies between a prenup and estate plan create expensive litigation after death.

Ensure Independent Legal Review and Proper Execution

Each party should retain their own independent attorney to review the agreement — having separate counsel is one of the strongest factors supporting enforceability. Sign the agreement well in advance of the wedding date (at least 30 days, preferably 60-90 days) to defeat claims of duress or coercion. Have the agreement notarized and, in states that require it, witnessed. Both parties should sign a statement confirming they entered the agreement voluntarily with full knowledge of the other party's finances.

Prenuptial Agreement Requirements by State

Prenuptial Agreement laws and requirements differ across states. Key variations include specific language requirements, notarization mandates, witness requirements, filing deadlines, and enforceability standards. Our templates incorporate state-specific provisions when you select your jurisdiction.

For the most comprehensive state-specific version, use our AI generator which automatically applies your state's legal requirements.

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Free Template vs Custom Prenuptial Agreement

Feature	Free Template	Custom (AI or Attorney)
Basic separate property and marital property classification
Financial disclosure schedule templates
State-specific enforceability requirementsCommunity property vs. equitable distribution rules vary	-
Spousal support formulas and sliding scale provisions	-
Business valuation and protection provisionsEssential for business owners	-
Estate rights coordination and waiver provisions	-
Sunset clause and amendment framework	-
Attorney-reviewed enforceability assessmentBoth parties should have independent counsel	-

Prenuptial Agreement Template FAQ

What is a prenuptial agreement?

A prenuptial agreement — commonly called a prenup — is a legally binding contract entered into by two people before their marriage that establishes the property and financial rights of each spouse in the event of divorce, separation, or death. The agreement typically identifies each party's separate property, defines how property acquired during the marriage will be classified and divided, addresses spousal support obligations, allocates responsibility for debts, and may modify default inheritance rights. Every state recognizes prenuptial agreements, and most states have adopted some version of the Uniform Premarital Agreement Act (UPAA) or the Uniform Premarital and Marital Agreements Act (UPMAA), which establishes the requirements for a valid and enforceable prenup. A prenuptial agreement allows couples to make their own financial decisions rather than relying on default state divorce laws, which vary significantly between community property states (where marital property is divided 50/50) and equitable distribution states (where courts divide property based on fairness factors). Contrary to common perception, prenups are not only for wealthy individuals — they benefit anyone who wants financial clarity and protection entering a marriage.

Are prenuptial agreements enforceable?

Prenuptial agreements are enforceable in all 50 states, but courts can and do set them aside when certain requirements are not met. The most common grounds for invalidation include: (1) failure to provide full and fair financial disclosure, meaning one party hid assets or lied about their financial situation; (2) lack of voluntariness, such as presenting the agreement for signature the night before the wedding or under threat of canceling the wedding; (3) unconscionability, meaning the terms are so one-sided that enforcement would be fundamentally unfair; (4) lack of independent legal representation, particularly when one party waived counsel without truly understanding the agreement; and (5) failure to comply with execution formalities such as the requirement that the agreement be in writing and signed by both parties. To maximize enforceability, both parties should have independent attorneys, sign the agreement well in advance of the wedding (60-90 days is ideal), provide complete financial disclosure with supporting documentation, and ensure the terms are fair enough that a court would not consider them unconscionable at the time of enforcement.

When should you sign a prenuptial agreement?

You should begin discussing a prenuptial agreement at least 3 to 6 months before the wedding date to allow adequate time for financial disclosure, negotiation, independent legal review, and thoughtful decision-making. The agreement should be fully executed — signed, notarized, and witnessed as required — no later than 30 days before the wedding, and ideally 60 to 90 days before. Timing is one of the most scrutinized factors in prenup enforceability challenges. An agreement signed the day before or the week of the wedding is highly vulnerable to a claim of duress, where the signing party argues they felt pressured to sign because canceling the wedding would have caused humiliation, financial loss from non-refundable deposits, and emotional harm. Starting early also gives both parties time to retain their own independent attorney, exchange financial disclosures, negotiate terms in good faith, and make revisions. The process should feel collaborative rather than adversarial — a prenup is a financial planning tool, not a weapon.

Can a prenup be overturned in court?

Yes, courts can and do overturn prenuptial agreements, though a properly drafted and executed prenup is difficult to invalidate. The most successful challenges involve fraud or concealment of assets during the disclosure process, proving that adequate financial information was withheld or misrepresented. Courts also overturn prenups where there is evidence of duress or undue influence — for example, presenting the agreement for signature at the rehearsal dinner or threatening to cancel the wedding. Unconscionability is another ground for invalidation, which courts evaluate at two points: whether the agreement was unconscionable when signed (procedural unconscionability, such as one party lacking legal representation or understanding of the terms) and whether enforcement would be unconscionable at the time of divorce (substantive unconscionability, such as leaving one spouse destitute after a 25-year marriage). Some states also allow invalidation if enforcement would leave one spouse eligible for public assistance. To protect against challenge, ensure both parties have independent counsel, provide exhaustive financial disclosure, sign well in advance of the wedding, and include terms that are fair and reasonable under foreseeable circumstances.

What cannot be included in a prenuptial agreement?

There are several categories of provisions that cannot be legally included in a prenuptial agreement or that courts will refuse to enforce. First and foremost, child custody and child support provisions are not permitted — courts determine custody based on the best interests of the child at the time of divorce, and child support is calculated under state guidelines that cannot be waived or modified by prenuptial agreement. Second, provisions that incentivize or encourage divorce — such as large payouts triggered solely by filing for divorce — may be deemed against public policy. Third, personal behavior clauses (sometimes called "lifestyle clauses") that attempt to regulate weight, appearance, household chores, frequency of intimacy, or social media behavior are generally unenforceable, though some courts have enforced fidelity clauses with financial consequences for infidelity. Fourth, provisions that are illegal or unconscionable — such as waiving all property rights and spousal support while leaving one spouse destitute — will be struck down. Fifth, any terms that were agreed to through fraud, duress, or without adequate financial disclosure are voidable. The enforceability of specific provisions varies by state, making independent legal review essential.

Do both parties need a lawyer for a prenup?

While most states do not legally require both parties to have independent attorneys, having separate counsel is one of the strongest factors supporting the enforceability of a prenuptial agreement. When both parties are represented by their own lawyer, it becomes extremely difficult for either party to later claim they did not understand the agreement, were pressured into signing, or were not aware of their rights. Many courts view the absence of independent counsel as a significant red flag when evaluating voluntariness and informed consent. Some states, such as California, create a presumption of involuntariness if the unrepresented party was not given at least 7 days to review the agreement and was not advised in writing to seek independent counsel. Even if retaining separate attorneys adds to the upfront cost, it provides substantial protection against the far greater cost of having the agreement invalidated years later during a contentious divorce. At minimum, the party who did not draft the agreement should have an independent attorney review it, explain its implications, and document that the party signed with full understanding of the rights they were waiving.

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Attorney-Verified Document: All Legal Tank templates are drafted and reviewed by licensed attorneys to ensure legal accuracy and compliance with current state and federal laws. While our templates meet professional legal standards, individual circumstances vary. We recommend consulting with a licensed attorney in your jurisdiction for complex or high-stakes legal matters. Legal Tank is not a law firm and use of our platform does not create an attorney-client relationship.

Reviewed by licensed attorneys · Editorial policy · Last updated March 2026

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