Delaware Prenuptial Agreement
Delaware prenuptial agreements are governed by 13 Del. C. §§ 321–328 (the Delaware Uniform Premarital Agreement Act). Courts apply single review only — unconscionability is assessed at signing, not additionally at divorce — as confirmed in Silverman v. Silverman, 206 A.3d 825 (Del. 2019), with unconscionability decided by the court as a matter of law. Uniquely, Delaware has no alimony floor — under 13 Del. C. § 1512(f), a party who waives alimony "shall have no remedy," with no public assistance carve-out.
Bottom line: Delaware earns an A+ grade. Single review, no alimony floor, and strong post-Silverman enforcement make Delaware one of the strongest states in the country for prenup enforceability.
Delaware Prenup Enforceability Rating: A+
Delaware Prenup Laws: Key Statutes Explained
Delaware Uniform Premarital Agreement Act (UPAA), codified at 13 Del. C. §§ 321–328
Separate Property
All assets can remain separate property, avoiding costly divorce settlements. Joint assets and debts titled in both names can be split 50/50 according to a prenuptial agreement.
Unconscionability Single Review (Pro-Prenup)
Delaware reviews prenuptial agreements for unconscionability ONLY at execution (signing), not at enforcement (divorce). This was reaffirmed in Silverman v. Silverman (Del. 2019), which reversed a Family Court refusal to enforce despite massive wealth disparity at divorce. No "second look" doctrine applies.
Unconscionability Standard—13 Del. C. § 326 Two-Prong Test
A prenup is unenforceable if the challenging party proves: (1) involuntary execution due to coercion or undue pressure; OR (2) the agreement was unconscionable at execution AND (a) lacked fair and reasonable disclosure of the other's property/obligations, (b) no written waiver of disclosure, AND (c) challenging party lacked adequate knowledge of the other's finances. Unconscionability is decided by the court as a matter of law.
Alimony Waivers Fully Enforceable
Delaware enforces written alimony waivers without a public-assistance exception under 13 Del. C. § 1512(f): a party who waives alimony "shall have no remedy" under the alimony statute. Unlike many UPAA states, Delaware has no statutory carve-out requiring support to prevent welfare eligibility.
Timing
No minimum specified, but we recommend signing the prenup 60+ days before the wedding, with both parties having 2-3 weeks to review the final version to minimize challenge risk. Reach out to an attorney at least 4-6 months before the wedding with your draft prenup. Better yet, sign the prenup before proposing. Coulbourn v. Lambert (Del. Fam. Ct. 1996) set aside a prenup signed two days pre-wedding; T.A. v. C.A. (2022) upheld one signed ten days out.
Independent Counsel
Not required, but separate counsel dramatically strengthens enforceability if the agreement is later challenged. In Sherman v. Ellis, the Delaware Supreme Court treated a written acknowledgment that the signing party was acting against counsel's advice as nearly dispositive on voluntariness.
Financial Disclosure
"Fair and reasonable disclosure" of property and financial obligations required under 13 Del. C. § 326, plus a § 326(a)(2)(b) written waiver of further disclosure that Silverman and Sherman treat as a near-conclusive defense to unconscionability challenges. PerfectPrenup includes both.
Moderate Burden to Challenge
Challenging party must prove either involuntary execution or unconscionability plus lack of disclosure. Delaware courts uphold "freedom of contract" as a fundamental policy and, post-Silverman, will not invalidate based on wealth disparity alone — even where one spouse exits with $12M+ and the other with effectively nothing.
Child Support and Custody
Child support and custody clauses are unenforceable under 13 Del. C. § 323(b) and could undermine the entire agreement. Do not include.
Delaware Prenuptial Agreement Court Cases
Coulbourn v. Lambert, No. CN96-07754, 1996 WL 860586 (Del. Fam. Ct. Dec. 19, 1996)
Family Court set aside a prenup signed two days before the wedding by a homemaker wife with limited education and no independent counsel, finding she did not voluntarily enter the agreement where the wealthy businessman husband initiated and presented the agreement and her legal rights were never fully explained.
Rockwell v. Rockwell, 681 A.2d 1017 (Del. 1996)
Delaware Supreme Court affirmed Family Court's modification of alimony provisions in a separation agreement incorporated into the divorce decree based on the wife's showing of a "real and substantial change of circumstances" under 13 Del. C. § 1519(a)(4), confirming that incorporated agreements are subject to statutory modification absent contrary contractual language.
Silverman v. Silverman, 206 A.3d 825 (Del. 2019)
Delaware Supreme Court reversed Family Court and enforced a 1997 prenup against the wife in a divorce after an 18-year marriage, holding that unconscionability alone cannot invalidate a premarital agreement under 13 Del. C. § 326 — the challenger must also prove inadequate disclosure, and the husband's omissions (a Ford Explorer, a $3,000 life insurance policy, and a misstated 50% vs. 100% ownership in a $200,000 parcel) were de minimis against his disclosed ~$4 million net worth.
Sherman v. Ellis (Superior Ct.), 2020 WL 30055 (Del. Super. Ct. Jan. 2, 2020)
Superior Court held the same prenup at issue in Silverman (real names: Sherman/Willoughby) enforceable against the wife — who waived alimony and any share of marital wealth and signed against her attorney's written advice — where husband's assets exceeded $12 million and annual income exceeded $1 million at the time of divorce.
Sherman v. Ellis, 248 A.3d 87 (Del. 2021)
Delaware Supreme Court reaffirmed enforceability of the Silverman/Sherman prenup in a related legal-malpractice action, applying the traditional "but for" causation test and confirming that voluntary execution plus fair-and-reasonable disclosure suffices for enforcement under § 326 regardless of whether the agreement is unconscionable.
In re Estate of Lawrence M. Sullivan, Sr., C.A. No. 2020-0318-SEM (Del. Ch. Oct. 31, 2022)
Court of Chancery Master held a surviving wife's challenge to a 1988 prenup — under which she waived dower, elective share, intestacy, and statutory allowance rights against her husband's estate — was barred by laches after a 30+ year delay, where she had independent counsel who advised against signing and she signed anyway.
L.W. v. J.W., No. CN13-01397, 2014 WL 4203848 (Del. Fam. Ct. 2014)
Family Court enforced a prenup signed by parties who both lacked legal counsel, finding the wife voluntarily signed because she repeatedly told the husband she didn't care about his assets and chose not to consult an attorney for that reason.
T.A. v. C.A., No. 20-16002, 2022 WL 2256331 (Del. Fam. Ct. Feb. 10, 2022)
Family Court enforced a prenup signed 10 days before the wedding by a couple with a history of breaking up and reconciling, holding that tight pre-wedding timing combined with one party's lack of counsel did not establish involuntariness where the totality of circumstances showed the wife understood and accepted the agreement.
5-Step Checklist: How to Sign & Execute a Prenup in Delaware
Step 1: Download and read the Delaware prenuptial agreement
Start with our free template. It is written for Delaware-specific statutes and case law under 13 Del. C. §§ 321–328 (Delaware Uniform Premarital Agreement Act). Read it in full — know what you are getting into legally with marriage. The 15+ pages is written thoroughly to include rebuttals to common legal challenges and fallback provisions.
Step 2: Draft changes on your own
See a clause you don't like? Copy it into an AI like Claude, explain what you'd like to change or what you want the clause "to do." Save any changes as a separate alternate version — don't overwrite the original. Bring both versions to your attorney review. Note: AI is often gender-biased and crafts terms beyond what is legally required. Push back on its output.
Step 3: Find a matrimonial or divorce lawyer in Delaware
Find a matrimonial or divorce attorney in your state. Avvo, Findlaw, and Justia are good. Look for someone with 10+ years experience. Call or email and ask them how much to review your draft prenup and help with signing. Send them your draft.
Step 4: Meet your lawyer 4–6 months before the wedding
Our recommendation: sign the prenup before proposing. That way, you both get the legal work out of the way, and you know this is the right person to marry. Already proposed? 4–6 months before the wedding should leave you enough time to give your spouse 1–2 weeks to review the final draft and have it signed 60+ days before the wedding. Delaware Family Court invalidated a prenup signed two days before the wedding (Coulbourn) but upheld one signed ten days out (T.A. v. C.A.).
Step 5: Review and sign the prenup with your attorney
Both attorneys present can serve as witnesses and notarize on the spot, satisfying all requirements in one signing ceremony. We HIGHLY recommend having the prenup reviewed and signed with an attorney. Each party keeps a signed original, and so should each party's attorney.
Delaware Prenuptial Agreement: Frequently Asked Questions (2026)
1. How much does a prenup cost in Delaware?
The average flat fee for a Delaware attorney to draft a prenuptial agreement is approximately $950, with attorney review of an existing draft averaging around $700. The all-in average is $875 for a standard Delaware prenup. Costs rise with complexity — multiple properties, business interests, trust planning, or contested negotiations can push fees to $3,000–$10,000+. Online drafting platforms (e.g., HelloPrenup, PerfectPrenup) offer flat-fee templates around $599 per couple, with optional attorney review add-ons.
2. Is a prenup legally binding and enforceable in Delaware?
Yes. Prenups are governed by the Delaware Uniform Premarital Agreement Act, 13 Del. C. §§ 321–328, enacted in 1996. To be enforceable, the agreement must be (1) in writing, (2) signed by both parties, (3) executed voluntarily, and (4) supported by fair and reasonable financial disclosure or a written waiver of disclosure. Delaware reviews unconscionability ONLY at execution — not at the time of divorce — providing strong enforcement certainty per Silverman v. Silverman (Del. 2019).
3. What can and cannot be included in a Delaware prenup?
Under 13 Del. C. § 323(a), a Delaware prenup may cover: property rights, asset management, disposition upon divorce or death, modification or elimination of alimony, wills and trusts, life insurance death benefits, choice-of-law provisions, and any matter not violating public policy. Cannot be included: child support and child custody (§ 323(b)), provisions requiring illegal acts, and "lifestyle clauses" that violate public policy. Including unenforceable terms can risk the validity of the entire agreement.
4. Do I need a lawyer for a prenup in Delaware?
No, but it's strongly recommended. Delaware does not require either party to have independent counsel for a prenup to be valid — L.W. v. J.W. (Del. Fam. Ct. 2014) upheld a prenup where neither party had a lawyer. However, in Sherman v. Ellis (Del. 2021), the Delaware Supreme Court treated a written acknowledgment that a party signed against attorney advice as nearly dispositive on voluntariness. Independent counsel dramatically reduces challenge risk.
5. How long before the wedding should I sign a prenup in Delaware?
Delaware has no statutory minimum waiting period, but timing is one of the most successful challenge grounds. Coulbourn v. Lambert (Del. Fam. Ct. 1996) set aside a prenup signed two days before the wedding; T.A. v. C.A. (Del. Fam. Ct. 2022) upheld one signed ten days out. Best practice: engage an attorney 4–6 months before the wedding, give your fiancé 1–2 weeks to review the final draft, and sign at least 60+ days before the ceremony. Signing before proposing is even safer.
6. Does a Delaware prenup need to be notarized?
No. Delaware does not require notarization for a prenup to be valid — only that it be in writing and signed by both parties under 13 Del. C. § 322. However, notarization is strongly recommended because it makes signature challenges (forgery, duress at signing) nearly impossible to mount. The cost is minimal and the enforceability benefit is significant.
7. Can a prenup be overturned or challenged in Delaware?
Yes, but the burden is on the challenging party. Under 13 Del. C. § 326(a), a prenup is unenforceable only if the challenger proves: (1) involuntary execution (coercion, duress, or last-minute pressure), OR (2) the agreement was unconscionable when signed AND the challenger lacked fair financial disclosure, did not waive disclosure in writing, AND lacked adequate knowledge of the other party's finances. Unconscionability is decided by the court as a matter of law, not by a jury.
8. What happens without a prenup in Delaware?
Delaware applies equitable distribution under 13 Del. C. § 1513 — not 50/50 community property. All property acquired during the marriage is presumed marital regardless of which spouse holds title, and a Family Court judge divides it based on factors including length of marriage, age and health of each party, financial and homemaker contributions, and economic circumstances. Separate property is limited to gifts, inheritances, pre-marital assets, and assets protected by valid agreement. Without a prenup, you surrender these decisions to a judge's discretion.
9. Can you waive alimony or spousal support in a Delaware prenup?
Yes — and Delaware enforces alimony waivers more strictly than most UPAA states. Under 13 Del. C. § 1512(f), a party who waives alimony in a prenup or postnup "shall have no remedy" under the alimony statute. Unlike many states, Delaware has no public-assistance exception requiring courts to override a waiver to prevent welfare eligibility. A clear, voluntary, written alimony waiver is binding even at significant wealth disparity (Silverman, Sherman).
10. Can I get a prenup after marriage in Delaware? (Postnuptial agreements)
Technically no — once married, a "prenup" becomes a postnuptial agreement. Delaware recognizes postnups: 13 Del. C. § 325 governs amendments to a premarital agreement after marriage, and Delaware courts also enforce freestanding postnups under contract principles. Postnups must meet the same enforcement standards: writing, voluntary execution, and fair disclosure. Common postnup triggers include inheritance, business formation, or reconciliation after estrangement.
11. Does a Delaware prenup cover child support and child custody?
No. Under 13 Del. C. § 323(b), a prenup cannot adversely affect a child's right to support. Custody and support are determined by the Family Court at the time of divorce based on the "best interests of the child" standard — independent of any agreement between the parents. Including child custody or support clauses risks invalidating those provisions and potentially undermining the entire agreement. Leave them out.
12. What statute governs prenuptial agreements in Delaware?
The Delaware Uniform Premarital Agreement Act (UPAA), codified at 13 Del. C. §§ 321–328, enacted by Senate Bill 303, 70 Del. Laws c. 462, approved July 9, 1996, effective September 1, 1996. Delaware has NOT adopted the 2012 Uniform Premarital and Marital Agreements Act (UPMAA) — only Colorado and North Dakota have. The Delaware Family Court has exclusive jurisdiction over prenup enforcement in divorce proceedings under 13 Del. C. § 1504.