Prenuptial Agreements: Planning & Protection
Wednesday, March 4th, 2026
A prenuptial agreement is a legal tool designed to bring clarity, protection, and peace of mind to couples planning for marriage. They operate much like an insurance policy – something you hope to never need but are grateful for in the event of unfortunate circumstances. A well-drafted prenuptial agreement can reduce conflict and save significant time and expense in the event of a divorce by encouraging open and honest communication about financial expectations. Prenuptial agreements are especially valuable for individuals entering into marriage with children from prior relationships, business interests, substantial assets, and/or a significant income disparity.
What can a Prenuptial Agreement Address?
Prenuptial agreements commonly address issues of property division, debt responsibility, inheritance rights, spousal living arrangements upon the onset of separation, and spousal support in the event of a divorce. However, prenuptial agreements generally do not replace full estate plans upon death, which require more comprehensive planning. It is important to note that provisions regarding child support and custody are typically unenforceable, as courts must prioritize a child’s best interests over an agreement between the parents.
How are Assets Classified?
A clear understanding of what constitutes marital versus separate property is a foundational component of any prenuptial agreement. “Marital property” means all real and personal property, both tangible and intangible, acquired by either or both spouses during marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce. “Separate property” means all real and personal property owned by a spouse before marriage, property acquired in exchange for property acquired before marriage, property acquired by a spouse at any time by inheritance, and certain legal compensation.
Income from, or an increase in value of, separate property may be considered marital property if each party substantially contributes to its preservation and appreciation. Further, the phrase “substantial contribution” may include a spouse’s direct or indirect contribution as a homemaker, wage earner, parent or family financial manager, along with other factors determined by the reviewing court. However, a prenuptial agreement can provide that separate property remains separate property in the event of a divorce regardless of an increase in value or contribution by the other spouse, such as real property or business interests acquired before marriage.
For further detail, including classification of specific assets as marital or separate property, see T.C.A. § 36-4-121.
What are the Enforceability Requirements of a Prenuptial Agreement?
Prenuptial agreements must be in writing and signed by both parties. Additionally, prenuptial agreements must be entered freely, knowledgeably, and in good faith without exertion of duress or undue influence upon either spouse.
How Does a Court Decide if the Agreement was Entered Freely, Knowledgeably, and in Good Faith?
Freely: Independent Counsel
Parties are not required to employ independent counsel, but it is highly recommended. Representation by independent counsel may be the best evidence that a party has entered into a prenuptial agreement freely and knowledgeably.
Knowledgeably: Full Disclosure of Assets
Satisfying this element requires a fact intensive inquiry and depends on the circumstances of each case. While recommended, disclosure of every asset owned is not required. However, each party must be given a clear idea of the nature, extent and value of the other party’s property and resources. A transcribed or itemized disclosure of assets is not required if the other party has independent knowledge of the full nature, extent and value of the other party’s assets, but it is still highly recommended.
At Lipsey Morrison, we provide clients with a comprehensive asset disclosure form that addresses assets, liabilities, and income to assure full transparency when entering the agreement.
Good Faith: Absence of Duress or Undue Influence
Satisfying this element also requires a fact intensive inquiry of all circumstances related to the negotiation and execution of the agreement. Although the proximity between executing the agreement and the marriage date is not a determinative factor, it is relevant and may be considered. Timing is important because it affects whether the agreement was presented as a condition of marriage as well as the opportunity to consult independent counsel. For these reasons, proactive negotiation and execution well in advance of marriage is recommended.
What About Fairness?
Courts consistently hold that provisions that only benefit one spouse do not make the agreement unenforceable. While a one-sided prenuptial agreement may be upheld, courts may refuse enforcement if enforcement would leave one spouse financially destitute or a public charge. That is, enforcement would leave one spouse dependent on public assistance or deprived of basic support.
Additionally, courts have held that the duration of a marriage does not affect the fairness of a prenuptial agreement. Further, enforcement of a prenuptial agreement must not be denied based upon marital fault.
Protect your Future & Reach Out Today
Tennessee law favors prenuptial agreements where the parties are fully informed and enter the agreement freely and in good faith. However, there is no bright line rule or checklist that guarantees an agreement will be upheld. Prenuptial agreements are reviewed on a case-by-case basis, upon an analysis of all the circumstances attendant to the negotiation and execution of the agreement in question. Lipsey Morrison is here to help guide you through the process of entering a prenuptial agreement so that the agreement has the best chance of being upheld in the unfortunate event of a divorce and challenge of its validity. Please contact us at (865) 546-6321 for assistance with your prenuptial agreement.
This communication is for general informational purposes only and does create or constitute legal counsel. Please consult a qualified attorney for legal advice tailored for you.
- See T.C.A. § 36-4-121(b)(2)(A).
- See T.C.A. § 36-4-121(b)(4).
- T.C.A. § 36-4-121(b)(2)(B).
- T.C.A. § 29-2-101.
- T.C.A. § 36-3-501.
- Kahn v. Kahn, 756 S.W.2d 685, 695 (Tenn. 1988).
- Boote v. Shivers, 198 S.W.3d 732 (Tenn. Ct. App. 2005).
- Randolph v. Randolph, 937 S.W.2d 815 (Tenn. 1996).
- Id.
- Boote v. Shivers, 198 S.W.3d 732, 745-46 (Tenn. Ct. App. 2005).
- Sanders v. Sanders, 288 S.W.2d 473, 474 (Tenn. Ct. App. 1955).
- Cary v. Cary, 937 S.W.2d 777 (Tenn. 1996).
- Perkinson v. Perkinson, 802 S.W.2d 600 (Tenn. 1990).
- Id. at 604.