Couples in Wilmington, Dover, and Newark are signing prenuptial agreements earlier than past generations did. The reasons are practical, not pessimistic.
Not legal advice. This article is general information only. Prenup laws differ by state and change over time. Consult a licensed attorney in your state before acting on anything here.
A prenup is a written contract you sign before the wedding. It sets the rules for property and support if the marriage ends.
Delaware gives these agreements real legal weight when they follow the rules. The state adopted the Uniform Premarital Agreement Act in 1996, so the standards are written into the Delaware Code.
This guide explains what a Delaware prenup can do, what it cannot touch, and how to keep yours enforceable in Family Court.
Are Prenups Valid in Delaware?
Yes. Premarital agreements are governed by statute in Delaware, at 13 Del.
C. §§ 321 through 328.
Delaware enacted the Uniform Premarital Agreement Act, so the test for enforcement is set by law rather than by general contract rules alone.
An agreement that meets the statute binds the Family Court when a couple later divorces. The court does not rewrite a valid prenup simply because one spouse now regrets the terms.
The Voluntariness, Disclosure, and Fairness Requirements
Under 13 Del. C. § 326, a premarital agreement is not enforceable only if the spouse challenging it proves one of the following.
- That spouse did not sign the agreement voluntarily.
- The agreement was unconscionable when it was signed, and that spouse was not given a fair and reasonable disclosure of the other party’s property and finances.
- That spouse did not waive disclosure in writing and could not reasonably have known the other party’s property or financial obligations.
The Delaware Supreme Court read this standard strictly in Silverman v. Silverman, 206 A.3d 825 (Del. 2019). Unconscionability by itself does not void an agreement.
The challenging spouse must also show a failure of fair disclosure. Whether an agreement is unconscionable is decided by the court as a matter of law.
What a Delaware Prenup Can Cover
Section 323 of Title 13 lists what couples may put into an agreement. The scope is broad and covers most financial questions.
| Area | What You Can Decide |
|---|---|
| Property rights | Each spouse’s rights in property owned now or acquired later |
| Property management | The right to buy, sell, use, or control property during the marriage |
| Division at divorce or death | How property is split if you divorce, separate, or one spouse dies |
| Spousal support | Modifying or eliminating alimony, under 13 Del. C. § 323(a)(4) |
| Wills and trusts | An agreement to make a will or trust to carry out the contract |
| Life insurance | Ownership and beneficiary rights in a life insurance policy |
| Governing law | Which state’s law applies to the agreement |
| Other terms | Any personal or financial matter not against public policy |
What a Delaware Prenup Cannot Do
Some terms fall outside what the statute allows. A court will ignore these clauses even if both spouses signed.
- Reduce or waive a child’s right to support, which is barred by 13 Del. C. § 323(b).
- Decide child custody or parenting time in advance, since the court rules on a child’s best interests at the time of divorce.
- Include any term that violates public policy or a criminal statute.
- Force personal or lifestyle conduct that a court will not police, such as housekeeping duties or weight clauses.
Signing Requirements in Delaware
Delaware sets a short list of formal rules. Meeting all of them gives your agreement the best chance of holding up.
| Requirement | Detail |
|---|---|
| In writing | Required. An oral prenup is void. A marriage contract must be written under the statute of frauds, 6 Del. C. § 2714, and under 13 Del. C. § 322. |
| Signed by both | Required. Both parties must sign the agreement under 13 Del. C. § 322. |
| Notarization | Recommended. Not required by statute, but notarized signatures help prove the agreement is genuine. |
| Independent counsel | Recommended. Separate lawyers for each party support a finding that signing was voluntary. |
| Timing | Sign well before the wedding. A last-minute signature can support a claim of pressure. |
Why Disclosure and Independent Counsel Decide Delaware Prenups
The fight over a Delaware prenup almost always turns on disclosure. The statute lets a spouse attack an agreement only by showing it was unconscionable and that disclosure was unfair.
That is why full financial disclosure protects the agreement. Each party should attach a written list of assets, debts, and income before signing.
Independent counsel matters for a related reason. When each spouse has a lawyer, it is far harder to later claim the signature was not voluntary.
In Silverman v. Silverman, the Supreme Court enforced an agreement after finding the disclosure was fair and reasonable. Good records made the agreement hold.
Can a Delaware Prenup Waive Alimony?
Yes. Delaware law expressly allows a premarital agreement to modify or eliminate spousal support under 13 Del.
C. § 323(a)(4).
A clear, mutual alimony waiver is generally honored when the rest of the agreement meets the statute. This is one of the most common reasons couples sign a prenup.
There is one limit. If eliminating support would leave one spouse eligible for public assistance, the court may order support despite the waiver.
What Happens in Delaware Without a Prenup
Without an agreement, the Family Court divides property under 13 Del. C. § 1513.
Delaware is an equitable distribution state, not a community property state.
The court splits marital property in the proportions it finds just, without regard to marital misconduct. Equitable means fair, which does not always mean an even split.
Marital property and separate property are treated differently. The following categories are generally excluded from the marital estate.
- Property either spouse owned before the marriage.
- Property acquired by gift or inheritance during the marriage.
- Property acquired in exchange for separate property.
- Property excluded by a valid agreement, such as a prenup.
The court weighs factors like the length of the marriage, each spouse’s age and health, earning capacity, and contributions as a homemaker. A prenup lets you set these outcomes yourself instead.
Prenup or Postnup in Delaware?
A prenup is signed before the wedding. A postnup is signed after you are already married.
Delaware recognizes agreements between spouses during the marriage as a matter of contract law. A postnup can address the same property and support questions a prenup would.
A prenup is usually the stronger document. Courts apply close scrutiny to postnups because spouses owe each other duties of good faith once married.
What Makes a Delaware Prenup Fall Apart
Most failed prenups share the same flaws. Avoiding these protects your agreement.
- One spouse hid or understated assets, income, or debts before signing.
- There was no written waiver of disclosure and no real knowledge of the other party’s finances.
- The agreement was presented under pressure, such as days before the wedding.
- One spouse never had a chance to read it or to consult a lawyer.
- The document was never put in writing or was missing a signature.
- A clause tried to limit child support or decide custody in advance.
Delaware Prenup Costs Explained
Cost depends on how complex your finances are and whether you use lawyers or an online service.
| Option | Typical Cost |
|---|---|
| Attorney drafted, standard terms | 1,500 to 5,000 per person |
| Attorney drafted, complex assets | 2,000 to 7,000 per person |
| Online platform, flat fee | A few hundred dollars flat |
An online service like HelloPrenup lets couples build an agreement at a flat rate, then have a Delaware attorney review it. That approach keeps cost down while still meeting the statute’s standards.
How to Create a Delaware Prenup, Step by Step
The process is straightforward when you start early and keep records.
- Start months before the wedding so no one feels rushed.
- List every asset, debt, and source of income for both partners.
- Decide together how property and any alimony should be handled.
- Draft the agreement in writing, online or with a lawyer.
- Have each partner review it with separate independent counsel.
- Sign before the wedding and have the signatures notarized.
- Store signed copies somewhere both partners can reach them.
Final Thoughts on a Delaware Prenup
A Delaware prenup is a planning tool, not a sign of doubt. It replaces uncertain court outcomes with terms you choose together.
Sign early, disclose everything, and give each partner a real chance to get advice. Those habits are what keep an agreement standing under 13 Del.
C. § 326.
Done right, your prenup gives both of you clarity and protects what matters before you say I do.
Sources
- 13 Del. C. §§ 321 to 328, Premarital Agreements (Delaware Code)
- 13 Del. C. § 1513, Disposition of Marital Property (Delaware Code)
- 6 Del. C. § 2714, Statute of Frauds (Delaware Code)
- Silverman v. Silverman, 206 A.3d 825 (Del. 2019)