How a pre-nup comes together

What a prenuptial agreement covers, what it usually cannot do, what makes one hold up — and a sensible order to do it in.

A pre-nup is a contract two people sign before they marry, saying what happens to money and property if the marriage ends — and often what happens if one of them dies. Without one, the law where you live decides. With one, you decide, within limits, while you still agree about almost everything.

Step-by-step

1. Talk about it early. Three to six months before the wedding is comfortable. Go through the conversation checklist together and find the handful of topics that need real work.
2. Write down what each of you owns, owes and earns. Full, honest disclosure is the foundation — what each of you brings is a first draft of that list.
3. Each find your own lawyer. Separate advice is what makes an agreement hard to challenge later.
4. Draft, review, change. One lawyer drafts; the other reviews; you go back and forth until you both agree.
5. Pause, then sign — well before the wedding. The pre-nup timeline works back from your date so you can see whether there is time.

What a pre-nup usually covers

• Property from before the marriage — whether it stays with its owner, and what happens to its growth.
• Money earned during the marriage — pooled, kept apart, or a mix.
• The home — who owns it, who pays for it, and what the other partner gets back. Separate or shared later shows why this one needs care.
• A business, retirement savings, inheritances and family gifts.
• Debts — whose stay whose.
• Spousal support — where the law allows it to be set or limited.
• Death — how the agreement sits alongside a will or trust.

What it usually cannot do

In most places a pre-nup cannot decide child custody or child support; courts decide those based on the children's interests at the time. It cannot require anything illegal. And terms that would leave one person destitute, or that are wildly one-sided, are often not enforced even if both people signed.

What makes one hold up

• Full disclosure. Nobody can be held to giving up something they were never told about.
• Independent advice. A lawyer each, or at the very least a clear, informed decision not to have one.
• Time. An agreement put in front of someone days before the wedding invites the argument that there was no real choice. California requires at least seven days between receiving the final agreement and signing it.
• Fairness when signed — and sometimes when enforced. Some places also ask whether it has become unconscionable since.
• Writing and signatures. A verbal agreement about marriage property is almost never enough.

Frequently asked questions

Do we need separate lawyers?

It is not required everywhere, but it is the single strongest protection an agreement has. An agreement where one person had no independent advice is much easier to challenge, and some places require either separate counsel or a written waiver of it.

Can a pre-nup decide child custody or child support?

In most places, no. Courts decide those based on the children's interests at the time, and terms that try to settle them in advance are generally not enforced.

How long before the wedding should we sign?

Start three to six months out and aim to sign at least a month before the wedding. California requires at least seven days between receiving the final agreement and signing it; elsewhere, the closer to the wedding it is signed, the more closely a court may look at whether it was signed freely.

What if we are out of time?

Consider a postnuptial agreement, signed after the wedding. Most US states recognise them, though some look at them more closely than pre-nups.