Prenuptial Agreements: The Pros, Cons, Protections, and Risks

Money is emotions in disguise, and those emotions are especially charged for people hurt in a divorce and, of course, for those who profiteer on social media by going straight to their audience's fears and anger, completely bypassing the objectivity and nuance needed to make an informed decision. 

I’m here to help you make an informed decision, and I’ll get straight to it.

According to the American Bar Association, “A prenup does not create financial rules where none existed. Marriage already creates a set of financial rights and obligations under state and federal law. A prenup allows a couple to modify some of those default rules. The rules vary considerably by state.”

Not having a prenup does not mean having no financial protections. It means accepting the applicable default laws, and those laws vary from one state to another. And the partner most vulnerable to a poorly designed prenup is often the person whose future circumstances diverge most from what the agreement assumed. 

A recent Harris poll found that more than half of engaged or married couples under age 45 have entered into a prenuptial agreement, and more women than men now believe it is a good idea.

What Is a Prenup?

A prenuptial agreement is an agreement made by two people contemplating marriage that establishes or modifies certain financial rights and obligations arising from the marriage.

A prenup has limits on what it can determine. For example. parents cannot contract away their children's legal rights, nor can they conclusively determine child support, custody, or parenting time because courts retain authority over those matters. Federal protections also exist that a prenup may not override on its own, such as certain qualified retirement plans and provider survivor rights to spouses, according to the American Bar Association. 

What Happens Without a Prenup

Not having a prenup simply means that you’re accepting the applicable default laws. Here are the basics: 

Equitable Distribution States

Most states use some form of equitable distribution. A court divides marital property according to statutory factors intended to produce a fair result, which does not necessarily mean 50/50.  Learn more at the Cornell Law School Legal Information Institute.

Community Property States

In Community Property States, both parties are assumed to share all community property acquired during the marriage equally, and that property will be allocated equally between spouses.

Separate Property

Property owned before marriage, and frequently inheritances and individual gifts, may already receive significant protection without a prenup. There are more details to consider, and a good starting point is the Cornell Law School Legal Information Institute.

The Laws In Your State

Click here to access the state-by-state interactive map that allows you to uncover your state's applicable default laws. 

Related: Should We Really Have a Prenup? (Part I)

When a Prenup Can Make the Most Sense

Laurie Israel is a nationally known prenuptial agreement attorney, mediator, Martindale-Hubbell AV Preeminent Attorney®, and author whose books focus on premarital agreements and mediation. She is one of the early practitioners and developers of marital mediation, the practice of using mediation to help couples solve marital problems and improve their marriages. She has written for, and been interviewed in, the New York Times, the Wall Street Journal, New York Magazine’s “The Cut,” and other publications. 

When I hosted Laurie on the Modern Husbands Podcast, I was struck when she told me that less than 5% of couples should bear the cost (financial and emotional) of getting a prenuptial agreement. The circumstances in which it could be appropriate include: 

• One or both partners own significant premarital assets

• One partner is likely to leave or reduce paid work

• One partner owns a business

• This is a second or later marriage

• There are children from previous relationships

• There is a large difference in wealth

• One partner expects a significant inheritance or family wealth

• One or both partners have significant debt

• Past financial trauma

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When a Prenup Can Be Counterproductive

If you take a moment to review and consider when prenups can make sense, you should be able to embrace the case for signing one. But there are just as many reasons not to sign one, which is why I don’t take a pro- or no-prenup position. It starts with how the person approached with a prenup feels their partner really is; it's fair to say they might be rattled. Here are a few more:

• When it replaces better protections with worse ones

• When it assumes today’s financial roles will last forever

• When it fails to account for caregiving

• When one person does not have full financial information

• When it is presented immediately before the wedding

• When couples assume a prenup is “ironclad”

Affordability

The idea that prenups are an affordable option for ordinary folks is simply out of touch with everyday economic reality many face. Consider that a recent CNBC poll found that nearly 2 in 3 Americans are living paycheck to paycheck, and now consider all of the following costs that come at one when you get married: 

• The average cost of a wedding is $36,000. Click here for the state averages. 

• The average cost of an engagement ring is $5,200.

• The average cost of a honeymoon is $5,300.

• The average cost of a prenuptial agreement is $8,000.

When a Prenup Can Harm the Marriage

A 2026 study of 2,000 married Americans found that prenups were associated with lower perceived marital stability overall and lower satisfaction among some couples. To be clear, the study was observational, meaning that it could not establish whether prenups caused those feelings. But that’s not the end of the evidence showing prenups can cause harm. 

Couples with prenups are less confident that their marriage will last, and couples without prenups report being more committed to one another.

Related: Should We Really Have a Prenup? (Part II)

Questions to Consider Before Signing a Prenup

1. What rights would I have under my state's law without this prenup?

2. Exactly which of those rights am I giving up?

3. What rights is my partner giving up?

4. What assets will remain separate?

5. What happens to appreciation of those assets?

6. What happens if either of us stops working or reduces our career for children?

7. What happens if our incomes reverse?

8. How are retirement savings treated?

9. What happens after 5, 10, 20, or 30 years of marriage?

10. What happens at death as well as divorce?

11. Have both partners disclosed their assets and debts?

12. Has each person received independent legal advice about the rights being waived?

Professional Support

I'm the only Certified Financial Therapist™, Accredited Financial Counselor®, and Fair Play Facilitator®, empowering high-achieving couples with systems to manage money and the home as a team — drawn from decades of national leadership and lived experience.

Click here for more details about how and when I can support you.

I do not provide prenuptial agreement consultation. I recommend Laurie Israel for those services. Click here to learn more about her company. (I receive no compensation for this recommendation)

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