Can you write a prenup without a lawyer? Well, technically, yes, but we don’t advise it. Why? Because you need to be an attorney who understands the state requirements necessary to create a valid and enforceable prenup.
Nevertheless, in many states, courts may still enforce a “homemade” or “DIY” prenup, even without a lawyer. That doesn’t mean it will always stand up in court, though. Hence the reason it’s best to work with a professional or a platform like HelloPrenup.
However, if you’re set on writing your prenup without a lawyer, this article talks about some of the things to consider to ensure it is valid and enforceable.
Why the timing of the prenup is important
Prenups should be created with enough time before the wedding to avoid a future challenge to the agreement.
Here’s why timing is crucial:
- State-specific rules: Some states require a specific amount of time between finalizing the agreement and the wedding day. Why? Courts believe prenups presented the day before (or day of the wedding) can lead to coercion or pressure to sign it. This is bad because courts want people to enter prenups voluntarily.
- Caveat: Prenups done the day before the wedding can still be considered valid and enforceable in some states; it’s just not recommended.
- California’s 7-day rule: California has a unique waiting period rule that mandates there are at least 7 calendar days between the finalization of the agreement and the signing of it.
- Best practice: HelloPrenup recommends starting the process 3-6 months before the wedding. This allows for:
- Thoughtful negotiation
- Finding the right lawyer, if needed
- No pressure to sign
- No last-minute panic!
The prenup must be in writing
Now, this may seem obvious, but you’d be surprised at how many people create verbal prenups and expect them to stand in court. Virtually all states do not uphold verbal agreements. Putting it in writing helps avoid misunderstandings and unnecessary disputes over “he said, she said.”
The bottom line? If your partner SWEARS up and down that they won’t try to take your business in a divorce, and then one day actually does, you are SOL– that is an oral agreement and not enforceable in virtually all states.
What can you put in the prenup?
Okay, you’ve got your pen and paper and are ready to write, but what do you put in there? The typical topics that go into a prenup are financial in nature, such as property division. However, is the sky the limit? What else can you put? Here is a pretty long list of some topics you can cover in your prenup:
- Property division (who gets what)
- Alimony (financial support after the marriage ends)
- Debt allocation (who owns what debt)
- Primary residence
- Businesses
- How to file taxes as a married couple
- Confidentiality
- Pet custody
- Social media
- Death
- Life insurance
- Health insurance
- Infidelity (“no-cheating” clauses are only enforceable in some states)
- And more! (Yes, really!)
A quick note on what NOT to include: No clauses on child support, child custody, clauses incentivizing divorce, or illegal acts.
Don’t forget about financial disclosure!
This one is extremely critical to the prenup-making process. In fact, without proper financial disclosure, your prenup is likely to be tossed out by a judge.
Both partners must disclose all of their assets and liabilities. This is done on a financial schedule, which is a snapshot of all of your finances, including income, property, debt, inheritances, businesses, and more. The financial schedule should be attached at the end of your prenup.
Why is this necessary? Well, every state requires some form of financial disclosure in one way or another. In some states, you can waive it, and in most, you cannot. Some states require “full and fair” financial disclosure, and others simply require reasonable disclosure. Regardless, to ensure you are complying with state requirements, you must include proper financial disclosure.
Signatures, of course!
Another seemingly obvious requirement but an important one nonetheless. Your John Hancock! Put that ink on paper and sign the dang contract. Both of you. HelloPrenup recommends initialing every single page of the agreement.
What’s a contract without a signature? It’s just paper.
Notarization
Notarization is recommended by most attorneys in virtually every state. It’s a super simple way to add a layer of protection to your agreement.
Notarization is the act of signing your prenup in front of a Notary Public. A Notary Public verifies your identity, ensures you are of sound mind, and makes sure you know you are signing your prenup (no tricks!).
This prevents a future argument from either of the spouses that they didn’t actually sign the agreement or didn’t know what they were signing.
What to avoid when making your own prenup
We’ve discussed all of the things you should do; now let’s talk about what you shouldn’t do in regard to your prenup:
Don’t include unlawful terms
What do we mean by unlawful terms? In this context, this means things that are not allowed under the law. There are the obvious things like, don’t add into your prenup that you get to shoot your spouse in the foot if they cheat on you. (Although that would be a ‘surefire’ way to avoid infidelity!).
Then there are less obvious things like don’t include child support terms in your prenup, as that is typically not allowed to be contracted to in prenups.
Don’t include unconscionable terms
When a contract has unconscionable provisions, a court may throw out the one provision or the entire agreement altogether. What is unconscionable differs from state to state, slightly. The overarching theme of unconscionability is extreme unfairness. Not just “one person gets more than the other” – that’s typically okay.
Unconscionable is typically much stronger than that and more along the lines of leaving one person destitute or relying on public assistance while the other is sailing off to Croatia in their yacht. In California, lifestyle clauses like “no-cheating” provisions can lead to an unconscionable agreement.
Again, what is unconscionable varies from state to state.
Don’t force your partner to sign the prenup
All states agree that no prenup should be signed under some type of force.
Avoid coercion, duress, undue influence, and fraud when executing your prenup. This means exactly what you think it means: don’t put undue pressure on your future spouse to sign the agreement. Both parties need to enter the agreement freely and voluntarily; otherwise, what’s the point? They don’t actually agree to the terms.
But what constitutes duress or coercion? Well, this is not a straightforward answer, as it depends on the state laws you’re looking at. Each state has its own case law precedent, which speaks to what should be considered duress or coercion (or any other form of force).
Example of a prenup upheld, no duress found:
In a 2007 Florida case, an ex-wife argued her prenup was signed under duress because when she signed it, she was 7 months pregnant, and her pregnancy forced her to leave her job. Also, the agreement was signed one hour before the wedding (although they had been negotiating it for several months prior).
The result? No duress. The court reasoned that she had plenty of time to consider the prenup, as they had started negotiations months prior. For example, it would have been much worse if the ex-husband had presented the prenup to her for the first time one hour before the wedding, and in that case, it might have been duress, but not here. She even was represented by her own attorney.
Example of a prenup thrown out for coercion:
In a New Hampshire case from 2003, a court found that the ex-wife did not sign the contract voluntarily, the circumstances were coercive, and the ex-husband exerted wrongful pressure. She had no other option other than to sign the prenup.
A finding of coercion was based on the following:
- The prenup was presented to her just days before the wedding, for the first time.
- With only several days before the wedding, she did not have enough time to obtain her own attorney.
- The ex-husband’s attorney referred her to a recent law school graduate who had never negotiated a prenup before, and he was never able to verify the ex-husband’s financials (ahem: financial disclosure, anyone?!).
- If she refused to sign the prenup, she would have to cancel a 200-person wedding and lose her only means of support as a U.S. immigrant (the ex-husband had encouraged her to quit her job).
With all of the above things considered, the court agreed that this prenup was not enforceable.
The bottom line on DIY prenups
Attorneys go to law school for three years and endure the dreaded bar exam for a reason. There are so many nuances to the law that it can hardly be explained in one blog article. This is why the founder of HelloPrenup created the prenup-making platform with the backing of real legal knowledge while allowing you, the client, to take control of the prenup process and make it your own. Now, you can even have the best of both worlds: making your prenup yourself while also adding on Attorney Services for discounted, flat rates (for peace of mind, custom edits, or just an overall review).
Co-create your future together & protect your ass(ets) today with a prenup!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]
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