Welcome to Idaho Prenup Laws 101! While Idaho is famous for its potatoes, stunning landscapes, and rich natural resources, its prenuptial agreement laws might not be as well-known. Prenups are tools soon-to-be spouses can use to get financial clarity, protect their individual finances, and grow stronger as a couple. We’re here to provide you and your future bride or groom with everything you need to know about prenups in the Gem State. Let’s dive in!
What is a prenup?
A prenup, or “premarital agreement” in Idaho, is a contract you and your partner create before getting married (Idaho Code § 32-921). A prenup must be executed before the wedding day and cannot be signed after walking down the aisle. It outlines how your assets, debts, and financial responsibilities will be managed if your marriage comes to an end, and it can also outline different terms for the marriage, such as joint bank accounts and tax filing. Prenups do so much more than protect individual finances, too. They can also promote marital harmony by helping couples feel closer together after the process is complete by discussing and aligning on tough topics, such as children, divorce, death, etc.
Is a prenup necessary in Idaho?
Yes! While it is not legally required, it is highly recommended to have one. This way, you can have a say in how your assets and debts are divided and how spousal support will be handled in the event of divorce. If you do not have a prenup, Idaho’s default laws will apply, meaning your assets will be divided according to state rules rather than your own decisions. Idaho is a community property state, which means all property acquired during your marriage is community property (split 50/50) unless otherwise agreed upon in writing (IC § 32-906). Upon divorce, the court will split your property 50/50, or as close to 50/50 as possible, with few exceptions.
For example, say, unbeknownst to you, your soon-to-be spouse racks up a lot of debt during your marriage. In Idaho, if you do not have a prenup, the court could require both of you to share responsibilities for this debt. How can you avoid this? Get a prenup before you tie the knot!
Bottom line? While not legally required, creating a prenup is a helpful tool in order to have more say in how your assets are divided upon a divorce.
Are prenups enforceable in Idaho?
Yes, prenups that adhere to Idaho law are valid and enforceable. To make sure your prenup is enforceable, it must be:
- In writing
- Signed by both parties (willingly!).
- Acknowledged in the same manner as a deed (this means notarized).
- Both parties provided fair and reasonable financial disclosure.
- The agreement is not unconscionable.
- Compliant with all other Idaho laws and public policy (for example, it cannot involve anything illegal or determine child custody or support)
These requirements are put into place to make sure the agreement is fair while still allowing couples to contract with one another regarding their property and other rights.
What can you include in a prenup?
For an overview, Idaho Code § 32-923 details what can be included in a prenup. You can include clauses like:
- How you and your partner will handle any property you own or acquire.
- What you and your partner can do with your property, like buy, sell, manage, etc.
- What happens to the property if you separate, divorce, or one partner dies.
- Whether and how spousal support will be handled.
- Making a will or trust, or other such arrangements.
- How life insurance death benefits will be dealt with.
- Deciding what state law will govern the prenup (also known as choice of law provision).
- Anything else you may want to incorporate, so long as it does not violate the law or public policy, or touch on child custody.
These are just some examples of what you can include in your prenup. You can add a wide range of other clauses, from pets to debts, and beyond. Just make sure the agreement doesn’t break the law or violate public policy, and you’re good to go.
So then, what would invalidate a prenup?
In Idaho, there are a few different circumstances under which the courts will invalidate a prenup. Some reasons include:
Duress or coercion: If one party can show the prenup was not signed willingly, but rather one partner was pressured or coerced into signing the prenup, then it may not be enforced by the court. Idaho courts want to see each party voluntarily enter the agreement. (IC § 32-925(1)(a)).
Unconscionability & Lack of Financial Disclosure: If the court finds the prenup was unconscionable, then the court will not enforce the prenup. The Idaho Code provides certain elements the party challenging the prenup must meet to prove unconscionability (IC § 32-925(1)(b)):
- Unconscionability: The court finds the prenup was unconscionable when it was signed.
- Lack of Financial Disclosure: All three requirements must be met:
- The other party did not fully disclose their property or financial obligations.
- You did not voluntarily waive (in writing) your right to full disclosure of the other party’s property or financial obligations; and
- You didn’t have—or couldn’t have had—knowledge of the other party’s property or financial obligations.
Spousal Support: If the prenup alters spousal support and one spouse requires public assistance during the divorce, the court may intervene and require the other spouse to provide support, overriding the terms of the prenup to prevent reliance on public aid. (IC § 32-925(1)(a)).
Child Custody & Child Support: In Idaho, a prenup cannot address child support issues. The court will address this during divorce proceedings to determine what is in the best interest of the child. (IC § 32-923).
Do I have to share all my financial information?
Yes! It is very important to share all financial information with each other when drafting a prenup! If the court finds one partner has not provided a fair and reasonable disclosure of the other partner’s finances and property, the court may not enforce the prenup. (IC § 32-925(1)(b))
Full financial disclosure means you must give a thorough and accurate picture of your financial situation, which includes every asset, from property and savings to investments, as well as all your debts. Complete financial transparency is vital to ensuring your prenup is enforceable.
Can I waive alimony?
Alimony, better known as “spousal support” in Idaho, is the financial payment from one ex-spouse to the other to support them during or after the divorce. Yes, you can address spousal support in a prenup by waiving it altogether or limiting it in some way. However, a court may not enforce this clause of the prenup if one person ends up needing public assistance during the divorce as a result. (IC § 32-925(2)).
When’s the best time to get a prenup?
Short answer: Start the process three to six months prior to the wedding day. In Idaho, there is no set deadline for signing a prenup before your wedding day, but it is advisable to discuss this well before your wedding day. Allowing ample time to discuss, review, and make revisions with your future spouse ensures that both of you fully understand the terms and have the opportunity to consult a lawyer if desired.
Can I ever amend the prenup?
Yes! The prenup becomes effective once you are married, but the prenup can be amended or revoked at any time. To do so, the changes or revocation must be in a new written agreement and signed by both parties (IC § 32-924). The prenup amendment must also comply with all other relevant laws in Idaho. Sometimes people amend prenups because circumstances change, such as receiving a large unexpected inheritance or having children unexpectedly.
Do I need to hire an attorney for my Idaho prenup?
No, but it is highly recommended that you do! Hiring a lawyer offers numerous advantages, such as expert legal guidance, peace of mind, and added protection for your agreement in case it’s ever contested in court. If your prenup is contested in court, the Idaho court will consider whether you had legal representation as one of the factors in its decision-making process.
In Liebelt v. Liebelt, an Idaho court upheld the validity of a prenup where they found the husband had repeatedly insisted his wife seek independent counsel before signing the agreement. So, while not legally required, courts factor this in when prenups are challenged.
Does the prenup need to be notarized?
Yes! Idaho law (IC § 32-922) specifically requires the prenup to be notarized in order to be enforceable. It states that a prenup must be “acknowledged” in the same form as a deed. Getting your prenup notarized shows that both of you had knowledge of the agreement, and the document was signed voluntarily, adding another layer of protection. When your agreement is notarized, it makes it much harder for one spouse to argue that the agreement was not actually signed or it was signed under fraudulent circumstances.
Main takeaway on Idaho prenups
Those are the basics for all things prenup in Idaho! Understanding these key fundamentals can go a long way and will help you navigate the process like a pro. Just remember, the key to a well-prepared prenup is transparency and fairness. Both will ensure your prenup protects your assets and sets clear expectations for the marriage. So go on and get your prenup started in Idaho today! And if you’re looking for more info on Idaho prenups, check out this blog on the top six things to know before diving into the prenup process.
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: Nicole@Helloprenup.com
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