Delaware: Prenuptial Agreement Requirements

Requirements one by one

Delaware uses a UPAA-based statute

Title 13, Chapter 3, Subchapter II contains Delaware's Premarital Agreement Act.
Under §§ 321-322, the agreement is made by prospective spouses in contemplation
of marriage and must be written and signed by both parties.

Delaware uses the original UPAA's conjunctive disclosure structure. Voluntary
execution stands alone, but unconscionability must be combined with every
listed disclosure failure before § 326(a)(2) defeats enforcement.

The agreement needs a writing and both signatures

Section 322 says the agreement must be written and signed by both parties. It
is enforceable without consideration, so no separate payment or property
exchange is required.

Under § 324, the agreement becomes effective upon marriage. Signing satisfies
the form but does not activate the agreement if the contemplated marriage never
occurs.

Disclosure has three statutory alternatives

The § 326(a)(2) defense succeeds only when the challenger proves execution-time
unconscionability and all three disclosure failures: no fair and reasonable
disclosure; no voluntary express written waiver of further disclosure; and no
actual or reasonably available adequate knowledge of the other party's property
or financial obligations.

The waiver must be express, voluntary, and in writing. The statute does not say
that it must be a separate document.

Delaware ties unconscionability to disclosure

Section 326 creates two routes to nonenforcement. The first is involuntary
execution. The second is unconscionability when the agreement was executed
together with all three disclosure failures.

The court decides unconscionability as a matter of law. Section 326 does not
state a general enforcement-time unconscionability review for every term.

The Act contains no public-assistance support override

Under § 323(a)(4), parties may modify or eliminate spousal support or alimony.
Unlike the standard UPAA provision used in many states, Delaware's § 326 ends
after the enforcement test and court-law determination; it does not add a
public-assistance eligibility override.

The support term remains subject to the agreement-wide execution and disclosure
rules, but Subchapter II supplies no separate statutory support floor.

Child support and custody remain under legal limits

Section 323(b) says a prenup may not adversely affect a child's support right.
Section 323(a)(8) permits other personal terms only when they do not violate
public policy or a criminal statute.

Custody remains for the court. Under § 701(a), when parents live apart the court
may award custody to either parent, and neither parent receives a presumption of
being better suited.

Post-marriage changes require a signed writing

The effect and change rules appear in §§ 324-325. After marriage, § 325 permits
amendment or revocation only through a written
agreement signed by both parties. The change or revocation is enforceable
without consideration.

Subchapter II does not add a notary, witness, or payment requirement to that
change agreement.

What trips people up

• Delaware's disclosure test is conjunctive. Unconscionability under
  § 326(a)(2) must be paired with all three disclosure failures.
• There is no statutory public-assistance override. Delaware omitted that
  standard UPAA support provision from Subchapter II.
• Notarization is not the statutory form. Section 322 states the form as a
  writing signed by both parties.

Common questions

Is independent counsel mandatory?

Subchapter II does not impose a separate-counsel mandate, counsel waiver, fixed
review period, or pre-wedding countdown. Section 326 still makes voluntary
execution an independent requirement.

Can the parties waive further financial disclosure?

Yes. Section 326 recognizes a voluntary express written waiver of further
disclosure. Fair and reasonable disclosure or adequate financial knowledge can
also defeat the disclosure-based challenge.

Can a Delaware prenup waive alimony?

Section 323 permits modification or elimination of spousal support or alimony.
The term remains subject to the Act's enforcement and public-policy rules, but
Subchapter II states no public-assistance override.

Statutes and sources

• 13 Del. C. §§ 321-330. Current Delaware Premarital Agreements subchapter.
  Official Delaware Code
  (accessed July 28, 2026).
• 13 Del. C. § 701. Current custody authority and no-parental-presumption
  rule. Official Delaware Code
  (accessed July 28, 2026).