TL;DR: Irregular income (commission, freelance, and small-business earnings) is harder to categorize in a divorce than a steady salary. According to the Bureau of Labor Statistics (2023), roughly 11.9 million workers, 7.4% of U.S. employment, are independent contractors. A prenup lets couples define upfront how fluctuating income, business earnings, and any IP or royalties are treated, rather than leaving it to state default rules.If your paycheck does not arrive as a predictable number every two weeks, you already know the planning that takes. A big commission month followed by a quiet one. Three freelance invoices that all land in March and nothing in April. A small-business distribution that depends on how the year went. Income that comes in uneven chunks is normal for millions of people, and it raises a fair question when you start thinking about marriage: how does a prenup handle money that does not behave like a salary?
According to the Bureau of Labor Statistics, roughly 11.9 million workers, or 7.4% of U.S. employment, were independent contractors on their sole or main job in 2023, up from 6.9% in 2017, per the agency's Contingent and Alternative Employment Arrangements release . That is a large and growing group of people whose income is lumpy by design. A prenup gives couples in that situation a way to define, in advance, how those earnings are treated, instead of leaving it to whatever the default rule turns out to be.
Why irregular income is different A steady salary is easy to categorize. The same amount arrives on a schedule, and both partners can see it. Irregular income behaves differently. It arrives in bursts, varies from year to year, and often mixes personal effort with business expenses, timing choices, and client cycles.
That variability creates a categorization problem when a marriage ends. Courts and state law generally look at what was earned during the marriage and how it was treated. When income is uneven, questions pile up fast. Was that big commission year typical or a one-off? Is the money sitting in a business account revenue, an owner's salary, or a distribution? Did last year's freelance income get pooled into a shared account or kept separate?
A salary earner rarely faces those questions. Someone with lumpy income faces all of them at once. A prenup lets a couple answer them ahead of time, on their own terms, rather than sorting it out during a divorce.
What the athlete and creator playbook actually does You have probably seen headlines about how professional athletes or musicians structure their prenups. A player with a multiyear contract, an artist with a royalty catalog, a creator with brand deals. The dollar figures are enormous, but the mechanics underneath are ordinary.
The high-profile version handles contract-driven income that arrives in big, irregular pieces, plus intellectual property (things like royalties, licensing, and creative rights) that keeps generating money over time. A prenup for that situation defines what counts as separate, what gets shared, and how future earnings are treated. You can see the same logic in our guides on prenups for athletes and prenups for content creators and influencers .
Scale that down and the machinery is identical. A $60,000-a-year freelancer has lumpy contract income. A commissioned salesperson has earnings that swing with the quarter. A small-business owner has distributions that depend on the year. A designer who licenses artwork on the side has intellectual property that produces royalties . The tool that organizes a musician's catalog is the same tool that organizes your freelance invoices. The price tag is the difference, not the mechanics.
How a prenup can treat your income Without a prenup, income earned during marriage is generally treated as marital or community property by default, depending on the state. A prenup can set a different rule, subject to your state's law. It can outline how business income is categorized and whether certain earnings stay separate or are pooled into shared accounts.
Here is where precision matters. A prenup that says "income" without defining the word invites arguments later. For someone with irregular earnings, "income" might mean business revenue, an owner's salary, a distribution, a bonus, or a royalty payment, and those are different things. Spelling out exactly what each term covers is one of the most practical things an agreement can do. If you own a business, the stakes climb higher; our post on what happens to your business without a prenup walks through why.
The table below shows, in plain language, how a prenup can define treatment for common irregular-income types. The default column is general and qualified, because state rules differ. For jurisdiction specifics, see our state-by-state guide .
Income type
Default treatment without a prenup (general)
What a prenup can define
Commission earnings
Generally treated as marital or community property if earned during marriage, subject to state law
Whether commissions stay separate, are shared, or are split by a formula regardless of a high or low year
Freelance / project income
Generally treated as marital or community property if earned during marriage, subject to state law
Whether project income is kept separate or pooled, and how it flows through shared accounts
Small-business distributions or owner's salary
Generally treated as marital or community property to the extent earned during marriage, subject to state law
Which parts count as separate business value versus shared income, and how distributions are handled
Royalties or IP income (side creative work)
Generally treated as marital or community property if the work or income occurs during marriage, subject to state law
Who owns the underlying IP and how ongoing royalties are treated during and after the marriage
A one-time windfall or big contract year
Generally treated as marital or community property if received during marriage, subject to state law
Whether a spike is treated as separate, shared, or handled under a defined rule so it does not distort the baseline
A prenup can also define how joint expenses get handled when income swings. Couples with lumpy earnings often agree on how much each partner contributes to shared costs in a big month versus a lean one, so nobody is guessing.
Irregular income and spousal support Spousal support (payments one partner may make to the other after a divorce) is where uneven income can create real distortion. Support calculations often look at earning history, and a single peak year can skew that picture. If you happened to close a career-best sales year or land a large contract right before a separation, a support figure anchored to that number may not reflect what you typically earn.
A prenup can address how spousal support is handled so a temporary spike does not set the baseline. It can define what counts as income for support purposes, or set out an agreed approach. Treatment varies. Some states limit or scrutinize support waivers, and a few require independent legal counsel before certain waivers are valid, so outcomes are decided case by case under state law. Our spousal support overview covers the basics in more depth.
It helps to know your state's framework. Nine states follow community property rules; the other 41 use equitable distribution, and "equitable" doesn't always mean "equal." In an equitable-distribution state, a court divides property in a way it considers fair, which is not the same as a straight fifty-fifty split. For someone with unpredictable income, that makes the default outcome hard to forecast, which is a reason many couples prefer to define terms themselves.
The disclosure and commingling traps Two things reliably cause trouble for irregular earners: incomplete disclosure and commingling.
Disclosure comes first. A prenup generally depends on both partners sharing a full picture of their finances before signing. When income is lumpy, that means being clear about what a typical year looks like, not cherry-picking the good ones. Full disclosure supports the agreement's validity under state law.
Then there is commingling, which happens when separate money is mixed with shared money to the point it can no longer be traced, which can weaken or erase a separate-property claim. This is a frequent problem for freelancers and business owners, because money moves constantly. A client payment lands in a personal account, then covers a joint bill, then gets partly reinvested in the business. Once separate funds are blended into shared accounts without a paper trail, proving what was separate becomes difficult. A prenup can define how earnings are kept or pooled, and disciplined record-keeping (separate accounts, clear books) makes those definitions hold up. Tracing matters most exactly when income is uneven.
Frequently asked questions Can a prenup protect freelance or self-employment income? Yes. A prenup can specify how your freelance or self-employment income is categorized, whether it stays separate or is pooled into shared accounts. Without one, income earned during marriage is generally treated as marital or community property by default, depending on your state. The agreement is subject to your state's law.
How does a prenup handle commission income that changes year to year? A prenup can define how commission income is treated regardless of whether a given year is high or low. This matters because default state rules and support calculations can hinge on a peak year that isn't typical. Defining the rule in advance replaces that uncertainty with terms you and your partner chose.
Does a prenup affect spousal support if my income is unpredictable? It can. A prenup can address how spousal support is handled so a temporary spike in earnings doesn't set the baseline. Some states limit or scrutinize support waivers, and a few require independent counsel for certain waivers, so treatment varies by state and outcomes are decided case by case.
Why does the word "income" need to be defined in a prenup? Because vague terms cause fights later. A prenup that says "income" without specifying whether it means business revenue, an owner's salary, distributions, or bonuses can be read different ways at divorce. Spelling out exactly what each term covers is one of the most practical things an agreement can do.
I don't earn a lot, just irregularly. Is a prenup still worth it? Often, yes. A prenup is about clarity, not net worth. If your income arrives in uneven chunks, a prenup can define how it and any shared expenses are handled, so neither partner is guessing. The mechanics are the same ones high earners use, without the high-earner price tag.
Can a prenup cover income from a side business or creative work? Yes. A prenup can address a side business, freelance projects, and any intellectual property or royalties, defining who owns them and how income they generate is treated during marriage. This is the everyday version of what protects a musician's catalog or an athlete's endorsement deals.
How First fits If you have ever worried that prenups are for the wealthy, the mechanics above should ease that. The tool that organizes an athlete's contract income is the same one that organizes a freelancer's invoices or a salesperson's commissions. Prenups are increasingly common across income levels, as our Prenup Report lays out with sourced polling and Census data. This is about clarity for people whose money does not arrive in neat, equal pieces.
Twenty-nine states plus the District of Columbia have adopted some version of the Uniform Premarital Agreement Act or its successor, per the Uniform Law Commission , which is part of why a well-drafted prenup can define income treatment in most places, subject to local law. If a postnuptial agreement comes up instead, that is a separate path; consult with independent legal counsel about a postnuptial agreement.
If your income arrives in uneven chunks, a prenup is a way to turn that uncertainty into a plan you and your partner choose together. First helps everyday couples work through it on their own timeline, with optional independent attorney review, available in 46 states plus D.C. No PDFs, no hourly rates, no back and forth with attorneys. If it feels worth exploring, you can learn how the process works with First .
How irregular income, support waivers, and separate-property claims are treated varies by state and is decided case by case. All enforceability points here are subject to governing state law.
Methodology These figures are drawn from the U.S. Bureau of Labor Statistics Contingent and Alternative Employment Arrangements release, covering July 2023 (published November 2024), based on a supplement to the Current Population Survey conducted by the U.S. Census Bureau. The UPAA/UPMAA adoption count reflects the Uniform Law Commission's record of states that have enacted some version of the act.
Sources First is not a law firm. The information and tools provided by First on this site are not legal advice and not a substitute for the advice of an attorney.
