What Happens to a Prenup When You Get Divorced?

You signed a prenup before getting married. Now you’re getting divorced. Does it actually matter? Will it be enforced? What happens next?

A prenuptial agreement can dramatically affect how your divorce plays out—what you keep, what you split, whether you pay or receive alimony. But prenups aren’t automatically ironclad. Courts can throw them out if they’re unfair or improperly executed.

Here’s what actually happens to your prenup during divorce and what you need to know.

What Is a Prenuptial Agreement?

A prenup is a contract you sign before getting married that spells out what happens to your money and property if you divorce.

What prenups typically cover:

Asset Division – Who keeps what if you split up (house, investments, retirement accounts, businesses)

Debt Responsibility – Who’s responsible for debts each person brought into the marriage or accumulated during it

Spousal Support – Whether one person pays alimony to the other, how much, and for how long (or if alimony is waived entirely)

Property Rights – What stays separate property vs. what becomes marital property

Inheritance Protection – Keeping family inheritances separate from marital assets

Business Interests – Protecting businesses one spouse owned before marriage

What prenups typically DON’T cover:

• Child custody or visitation
• Child support amounts
• Anything illegal
• Personal matters (who does chores, how often you visit in-laws, etc.)

Courts won’t enforce prenup provisions about kids because those decisions must be made based on the child’s best interest at the time of divorce—not what parents agreed to years earlier.

What Happens to Your Prenup During Divorce

When you file for divorce with a prenup in place, here’s what typically happens:

Step 1: Someone Files for Divorce

One spouse files divorce papers. The prenup is mentioned in the filing or brought up early in the process.

Step 2: Both Sides Review the Prenup

Each spouse (and their attorneys) reviews the prenup carefully. They check:

• What it says about asset division
• Whether it addresses alimony
• How it handles debts
• If it’s still valid and enforceable

Step 3: Someone Might Challenge It

If one spouse thinks the prenup is unfair or invalid, they can challenge it in court. Common grounds for challenging:

Signed Under Duress – “He gave me the prenup the night before the wedding and said we’d call it off if I didn’t sign”

No Independent Legal Advice – “I didn’t have my own lawyer review it”

Incomplete Disclosure – “She hid assets and didn’t tell me about her second business”

Unconscionable Terms – “It leaves me with nothing after 20 years of marriage”

Improper Execution – “We didn’t have it notarized even though our state requires it”

Changed Circumstances – “It made sense when we signed it, but 15 years and three kids later, it’s completely unfair”

Step 4: Court Determines Enforceability

If someone challenges the prenup, a judge decides whether to enforce it. The judge looks at:

• Was it signed voluntarily?
• Did both people have lawyers (or at least the opportunity to get lawyers)?
• Was there full financial disclosure?
• Is it fair and reasonable?
• Does it comply with state law?
• Was it executed properly (notarized, witnessed, etc.)?

If the prenup passes these tests, the court enforces it. If not, the court tosses it out (or parts of it) and divides assets according to state law.

Step 5: Asset Division Proceeds

If the prenup is enforced: Assets and debts are divided according to what the prenup says, not state law.

If the prenup is thrown out: The court divides everything according to your state’s divorce laws (either community property or equitable distribution).

How Prenups Affect Asset Division

Without a prenup, state law determines how property gets divided.

Community Property States

Nine states follow community property rules:

• Arizona
• California
• Idaho
• Louisiana
• Nevada
• New Mexico
• Texas
• Washington
• Wisconsin

In these states, marital property (anything acquired during the marriage) is split 50/50. Separate property (owned before marriage or inherited) stays with whoever owns it.

Equitable Distribution States

All other states use equitable distribution. “Equitable” means fair, not necessarily equal. Courts consider:

• Length of marriage
• Each spouse’s income and earning potential
• Who contributed what to the marriage (including homemaking)
• Who has custody of kids
• Each person’s financial needs

This can result in 60/40, 70/30, or any other split the court deems fair.

With a Prenup

A valid prenup overrides state law. The prenup determines who gets what, regardless of whether you’re in California (community property) or New York (equitable distribution).

Example: You live in California. Without a prenup, your spouse would be entitled to 50% of everything acquired during marriage. But your prenup says you keep your business and all its appreciation—even though the business grew significantly during the 10-year marriage. The prenup wins (if it’s enforceable). Your spouse gets nothing from the business.

How Prenups Affect Alimony

Courts typically award alimony (spousal support) based on:

• Length of marriage
• Income disparity between spouses
• Each person’s earning capacity
• Standard of living during marriage
• Who has custody of children
• Health and age of both spouses

Prenups Can Modify or Eliminate Alimony

Waive it entirely – “Neither party will pay alimony to the other under any circumstances”

Set specific terms – “Husband will pay wife $3,000/month for five years if marriage lasts more than 10 years”

Create a sliding scale – “Alimony increases based on length of marriage: $1,000/month for 5-10 years married, $2,000/month for 10-15 years, $3,000/month for 15+ years”

Cap the amount – “Alimony will not exceed $2,000/month regardless of circumstances”

Limit the duration – “Alimony will not continue for longer than half the length of the marriage”

Limits on Alimony Provisions

Courts can reject alimony provisions that:

• Leave one spouse destitute
• Are grossly unfair given changed circumstances
• Were based on fraud or misrepresentation
• Violate public policy

Example: Your prenup says your spouse gets zero alimony. You’ve been married 20 years. Your spouse gave up their career to raise your kids and has no job skills. The court might throw out the alimony waiver as unconscionable, leaving your spouse with no means of support.

How Prenups Affect Debt Division

Prenups can specify who’s responsible for which debts.

Pre-marriage debts: “Each party remains solely responsible for debts incurred before marriage. Husband’s student loans ($85,000) remain his separate debt.”

During-marriage debts: “Any debt incurred for marital purposes (mortgage, joint credit cards) will be divided equally. Any debt incurred by one party for individual purposes remains that party’s separate debt.”

Business debts: “Wife’s business debts related to her company remain her separate obligation, regardless of when incurred.”

Without these provisions, courts might assign debt responsibility differently, especially in community property states where marital debts are split 50/50.

When Courts Throw Out Prenups

Prenups aren’t automatically enforced. Courts reject them when:

1. Signed Under Duress or Coercion

You can’t force someone to sign a prenup. If one party shows they were pressured, threatened, or coerced, the court tosses it.

Red flags courts look for:

• Prenup presented days (or hours) before the wedding
• Threats to call off the wedding unless signed
• Emotional manipulation or ultimatums
• One party significantly more powerful (boss/employee relationship)

Example: Steven Spielberg and Amy Irving’s prenup was handwritten on a napkin without legal representation. Court threw it out. Irving got $100 million.

2. Lack of Independent Legal Counsel

Both parties should have their own lawyers review the prenup. If one person didn’t have legal advice (or opportunity to get it), courts scrutinize the agreement more carefully.

Some states require both parties to have lawyers. Others just require proof that both had the opportunity to consult attorneys.

3. Failure to Disclose Assets

You must fully disclose your financial situation when signing a prenup. Hidden assets, undisclosed businesses, or “forgetting” to mention a trust fund can invalidate the entire agreement.

Both parties need a complete financial picture to make informed decisions.

4. Unconscionable Terms

A prenup can’t be so one-sided that it’s unconscionable (shockingly unfair). What seemed fair when you signed it also matters less than whether it’s fair when you’re divorcing.

Example: You signed a prenup at 25 giving up all rights to your spouse’s assets. Twenty years later, you’ve raised three kids, haven’t worked in 15 years, and have no job skills. The prenup leaves you with nothing while your spouse keeps millions. A court might find this unconscionable and throw it out.

5. Improper Execution

States have specific requirements for valid prenups:

• Must be in writing (verbal prenups don’t count)
• Must be signed before marriage (postnuptial agreements are different)
• May require witnesses
• May require notarization
• May need to be recorded with the county

Missing these formalities can invalidate the prenup.

6. Provisions About Children

Courts won’t enforce prenup provisions about:

• Child custody
• Visitation schedules
• Child support amounts

These decisions must be based on the child’s best interest at the time of divorce, not what parents predicted years ago.

Real Examples of Prenups in Divorce

Celebrity Divorces

Tom Cruise and Katie Holmes (2012) Their prenup kept things simple. Holmes got $400,000 annually in child support but no alimony. Personal assets remained separate. The prenup was enforced, and the divorce was finalized quickly.

Tiger Woods and Elin Nordegren (2010) Their prenup was reportedly modified after marriage (increasing the settlement amount if he cheated). Nordegren ultimately received $100 million. The modified prenup was enforced.

Steven Spielberg and Amy Irving (1989) Their handwritten prenup lacked proper legal representation. The court threw it out. Irving got $100 million—nearly half of Spielberg’s fortune at the time.

Everyday Situations

Protecting Family Inheritance A New York couple divorced after 15 years. The wife inherited a house from her parents during the marriage. Their prenup specified inheritances remain separate property. She kept the house without dispute.

Business Ownership Protection A Texas couple divorced after 10 years. The husband owned a small business before marriage. Their prenup stated any business appreciation during marriage remained his separate property. When they divorced, his business had tripled in value. The prenup was enforced—he kept 100% of the business.

Debt Responsibility A California couple divorced after 10 years. The husband had $150,000 in student loans before marriage. Their prenup made him solely responsible for this debt. When they divorced, the wife wasn’t liable for any of it.

Common Misconceptions About Prenups

“Prenups Are Only for Rich People”

Not true. Prenups benefit couples at all income levels. They’re useful for:

• People with children from previous marriages
• Business owners
• Anyone with significant debt
• People expecting inheritances
• Anyone who wants clarity about finances

“Having a Prenup Means You’re Planning to Divorce”

Also not true. Prenups are about being realistic and prepared, not pessimistic. Think of it like insurance—you don’t buy home insurance because you’re planning for your house to burn down.

“Prenups Always Hold Up in Court”

Definitely not true. Courts throw out prenups regularly when they’re:

• Signed under pressure
• Missing required formalities
• Hideously unfair
• Based on hidden assets

“You Can’t Change a Prenup After Marriage”

False. You can modify a prenup with a postnuptial agreement (postnup). Both spouses must agree to the changes, and the postnup needs the same formalities as the original prenup.

Tips for Getting a Prenup That Actually Works

1. Start Early

Don’t present a prenup a week before the wedding. Courts view last-minute prenups skeptically. Start discussions at least 6 months before the wedding, preferably earlier.

2. Each Person Gets Their Own Lawyer

Don’t share an attorney. Each person needs independent legal advice. This ensures the prenup is more likely to be enforced and protects both people.

3. Disclose Everything

Full financial disclosure is mandatory. List all assets, debts, income sources, and future expectations (inheritances, trusts, business interests). Don’t hide anything.

4. Make It Fair

Lopsided prenups get thrown out. Make sure both people get something reasonable. A prenup that protects your assets while leaving your spouse destitute probably won’t survive court review.

5. Follow State Requirements

Every state has different rules. Make sure your prenup complies with your state’s formalities:

• Proper signatures
• Notarization (if required)
• Witnesses (if required)
• Waiting periods (some states require signing a certain number of days before marriage)

6. Get It Notarized

Even if your state doesn’t require notarization, get it notarized anyway. It adds credibility and makes it harder to challenge.

Need your prenup notarized? Get it done online with BlueNotary in 10-15 minutes via video call. Both parties can sign from different locations, making the process easier to coordinate before your wedding.

7. Review and Update It

Circumstances change. Review your prenup every 5-10 years or after major life events (birth of children, significant income changes, inheritances received). Update it with a postnup if needed.

8. Discuss It Openly

Don’t spring a prenup on your partner. Have honest conversations about finances, expectations, and what you’re both comfortable with. Transparent communication now prevents ugly fights later.

The Emotional Side of Prenups and Divorce

Before Divorce

Signing a prenup can create tension. Some people feel:

• Hurt – “Don’t you trust me?”
• Insulted – “You think I’m after your money?”
• Pessimistic – “You’re already planning our divorce?”

Others feel:

• Relieved – “I’m glad we’re being practical about this”
• Secure – “This protects both of us”
• Mature – “We’re handling finances like adults”

During Divorce

When you’re actually divorcing, the prenup can trigger:

Relief – “At least we don’t have to fight about who gets what”

Resentment – “This prenup is screwing me over”

Betrayal – “I can’t believe I signed this”

Validation – “I’m glad we planned ahead”

The emotional impact depends heavily on whether the prenup’s terms feel fair given how the marriage actually played out.

Managing the Stress

Divorce is hard enough without fighting over money. Consider:

Therapy or Counseling – Process your feelings about the divorce and the prenup with a professional

Mediation – Even with a prenup, mediation can help you work through contested issues more peacefully

Support Groups – Connect with others going through divorce

Legal Clarity – Understanding your rights under the prenup (with a good lawyer’s help) reduces anxiety about the unknown

Prenuptial Bottom Line

A prenup can make divorce much simpler—or it can be thrown out entirely if it wasn’t done right.

When you divorce with a prenup in place, the court first determines whether the prenup is valid and enforceable. If it is, the prenup controls how assets, debts, and alimony are handled—not state law. If the prenup is invalid (signed under duress, unfair, improperly executed), the court ignores it and divides everything according to state divorce laws.

The key to a prenup that actually works:

• Start early (months before the wedding)
• Both people get their own lawyers
• Full financial disclosure
• Make it fair for both sides
• Follow all state requirements
• Get it notarized
• Review and update it periodically

A well-drafted prenup provides clarity and protection. A poorly drafted one creates more problems than it solves. If you’re considering a prenup, invest in doing it right—talk to experienced family law attorneys and approach it as a tool for transparency, not a weapon for divorce.

Frequently Asked Questions

What is a prenuptial agreement?

A prenuptial agreement (prenup) is a legal contract signed before marriage that outlines how assets, debts, and financial responsibilities will be divided if the couple divorces. It can also address spousal support and protect individual assets like inheritances or businesses.

Why should I sign a prenuptial agreement?

A prenup provides clarity about financial expectations, protects personal assets, defines debt responsibilities, and can simplify the divorce process by reducing conflicts over money. It’s beneficial for couples at all income levels, not just wealthy individuals.

Are prenups only for wealthy people?

No. Prenups benefit couples of all financial backgrounds. They’re useful for anyone with children from previous marriages, business owners, people with significant debt, those expecting inheritances, or anyone wanting clarity about financial matters in case of divorce.

How does a prenup affect asset division during divorce?

A valid prenup overrides state law and determines how assets are divided. It can specify that certain property remains separate, outline business interests, and prevent marital property from being split according to default state rules (community property or equitable distribution).

What makes a prenuptial agreement enforceable?

A prenup must be signed voluntarily without duress, include full disclosure of both parties’ assets and debts, be fair at the time of signing, comply with state-specific requirements (notarization, witnesses), and give both parties opportunity for independent legal counsel.

Can a prenuptial agreement be challenged in court?

Yes. Prenups can be challenged if they were signed under duress, lack proper legal formalities, contain unconscionable terms, were based on hidden assets, or have become grossly unfair due to changed circumstances. Courts scrutinize prenups signed close to the wedding date more carefully.

Does a prenup eliminate alimony?

A prenup can waive alimony entirely, set specific terms (amount and duration), or create conditions for spousal support. However, courts may reject alimony provisions that leave one spouse destitute or are grossly unfair given the circumstances at divorce.

How does a prenup affect emotions during marriage and divorce?

Signing a prenup can create feelings ranging from security and relief to hurt and mistrust. During divorce, it may provide clarity and reduce conflict, or it may cause resentment if terms feel unfair. Counseling or therapy can help couples navigate these emotions.

What are examples of prenups in real divorces?

Tom Cruise and Katie Holmes’ prenup gave her child support but no alimony. Steven Spielberg and Amy Irving’s handwritten prenup was thrown out, costing him $100 million. Everyday examples include protecting inheritances, keeping business ownership separate, and clarifying debt responsibility.

What are tips for creating an enforceable prenup?

Start discussions 6+ months before marriage, hire independent lawyers for both parties, fully disclose all assets and debts, make terms fair for both sides, follow state requirements, get it notarized, review it periodically, and discuss it openly with your partner.