Download Delaware Prenuptial Agreement Form [PDF]

The Delaware prenuptial agreement is a legal document that enables the parties who are about to get married to define their financial relationship. This kind of document is often used when one of the future spouses enters the marriage with a significant amount of assets and, therefore, wants to exclude them from the marital property.

However, parties also often use the prenuptial agreement after marriage to determine how the assets accumulated during the marriage will be divided in the event of a divorce. This can also include the liabilities accumulated during the marriage, such as mortgages, loans, and more. 

Laws and Legal Requirements for a Prenuptial Agreement in Delaware

Title 13, Chapter 3, Subchapter 2 of the Delaware Code regulates the status of prenuptial or premarital agreements as it is defined in the state of Delaware.

Section 321 provides that “Premarital agreement” shall mean an agreement between prospective spouses made in contemplation of marriage, and which is effective upon marriage.

Section 324 stipulates that the prenuptial agreement form becomes effective upon marriage. This means that the effectiveness of the prenup agreement is directly connected with the existence of the marriage.

Signing Requirements for a Prenuptial Agreement in Delaware

Section 322 provides that the premarital agreement must be made in writing and signed by both parties. Moreover, both parties must sign the document willingly and be able to understand the consequences of signing such a document.

Although the state law doesn’t officially require it, it is always recommended to have the prenuptial agreement form signed before the notary public. This will prevent any potential disputes and fraudulent activities.

Prenuptial Agreement Enforcement in Delaware

The court might declare the prenuptial agreement unenforceable if one of the parties proves that:

Moreover, if the marriage is declared void, the state law provides that the prenuptial agreement will be enforceable only to the extent necessary to avoid an inequitable result, meaning that it will be enforceable only for the property that will remain undivided if it weren't for the agreement. 

What Can a Prenuptial Agreement in Delaware Cover?

Below, you can see the most common provisions that a prenuptial agreement template can cover:

However, the provisions of the prenuptial agreement form cannot violate public policy or a statute imposing a criminal penalty. The provisions that regulate child support-related matters are also not going to be effective since the decisions about child support must be made by the court.

Prenuptial Agreement in Delaware: Validity Criteria

The basic violation that can affect the validity of the Delaware prenuptial agreement is not following the formality criteria set by the state law. In simple words, if the parties don’t make the prenuptial agreement in written form and if both parties don’t sign the document, the prenuptial agreement will be considered invalid.

The second reason for the invalidity of the prenuptial agreement is connected to the existence of marriage. If the marriage is declared void, the prenuptial agreement will remain valid only in situations where the property would otherwise remain undivided if it weren’t for the agreement.