Thinking about scribbling down some notes on a napkin for your postnup and calling it a day? Think again! DIY postnuptial agreements have a high chance of being considered unenforceable by a court. Why? Because postnuptial agreements have certain legal requirements, as dictated by state law. For example, some states require legal representation for a postnup, other states require specific language in the postnup, and other states have timing and signing requirements. In addition, postnups require something called consideration to be successful. So, simply writing “SPOUSE A gets the house” on a napkin likely won’t cut it. Let’s dive in to discuss DIY postnups and why you should avoid them.
State law variations on postnups
A quick note on state variations: Every state may be slightly different in terms of its postnup requirements. For example, Minnesota explicitly states that attorneys are required for a postnup in a statute. (Minn. Stat. § 519.11). However, most states do not have this laid out in legislation; instead, they talk about it through case law. This article focuses on the general requirements of most states, pointing out some exceptions. However, it’s important to research your specific state laws and speak with an attorney licensed in your state.
Postnup requirements are generally stricter than other contract requirements
The requirements for a valid and enforceable postnup are generally stricter than your average contract. For example, in California, if you wanted to turn certain property into separate property (this is called “transmutation”) then you need to have specific contract language in the document to make it legit. Let’s dive into the “strict” postnup requirements that make it tough to do a DIY postnup.
Confidential relationship between spouses
One of the main reasons postnuptial agreements have stricter requirements than other contracts is because of the relationship between the people that are contracting—spouses. The theory is that people who are married are in a much easier position to take advantage of one another due to their confidential and trusted relationship. It’s not like negotiating with a business partner, it’s negotiating with your life partner, which is a totally different world.
Formalities
Postnups generally require the agreement to be in writing (no verbal promises will be enforced) and signed by both parties. Some states require more, such as having two disinterested witnesses and notarization. While technically you can still do this with a DIY postnup, it may be difficult to ensure you do it right. For example, in New York, agreements must be notarized in the same way as a deed, which just requires notarization with specific language.
Consideration
The term “consideration” means each party is “getting” something out of the contract. Some states may allow consideration to be the spouses staying in the marriage, whereas other states may have a heightened requirement for consideration where both people are required to promise something tangible to the other. Making sure your “DIY” postnup has the correct consideration for your state can be difficult if you don’t understand the law.
Fair terms
Some states are very particular about the terms of the postnup. For instance, they want to ensure that the terms are reasonably fair. This is because postnups receive a heightened level of scrutiny by the courts. So, doing a DIY postnup may be difficult if you aren’t sure what a court in your state considers fair.
Legal representation
Some states require legal representation to have a valid and enforceable postnup. Most other states also review the factor of whether a spouse had a lawyer in the analysis of whether the agreement is enforceable. This completely nullifies the possibility of a DIY postnup if you need a lawyer… So, if you’re in one of the states that require a lawyer, you definitely cannot get a DIY postnup.
Financial disclosure
Most states require financial disclosure for a postnup to be considered valid and enforceable. This requires both spouses to share the fair market value of all of their assets, an approximate balance amount on their debt, and their income. Also, they must provide potential future inheritances. Doing financial disclosure correctly in a DIY postnup can be difficult without legal help.
Some clauses are not allowed
All states have restrictions on what you can and cannot put in a postnup, but some states are even more strict. For example, in California, you cannot include clauses about spousal support in a postnup (Cal. Fam. Code § 1620). Other states say spousal support is OK. This makes doing a DIY postnup difficult unless you’re privy to everything that may go into a postnup in your state.
The requirement for a lawyer
We want to highlight the key factor that makes getting a DIY postnup nearly impossible: The potential requirement for a lawyer. There are some states that expressly require a lawyer for a valid and enforceable agreement. In other words, a judge won’t even consider the agreement as “legit” if there isn’t an attorney signature on the document. In addition, most states also say that a court may analyze the circumstances surrounding the creation of the postnup, which includes looking at whether or not each party had a lawyer. While in most states, having a lawyer is just one factor a court looks at, and not having a lawyer isn’t good for your case either.
Why a DIY postnup is just a flat-out bad idea
Besides the fact that getting a DIY postnup is harder to enforce in many states, getting a DIY postnup is just a bad idea. Why? Because you may not truly understand the gravity of what you’re signing off on. You don’t have a lawyer to explain the consequences of the rights you’re giving up. You also don’t have a lawyer to tell you (from their experience) what is a fair agreement.
For example, if you waive spousal support in a DIY postnup, do you truly understand what that means? How much money could you potentially be losing out on (if at all)? What about waiving your right to your spouse’s property? What about the fairness of the agreement? Understanding the default law and what you’d be entitled to without a postnup is so important to feeling confident in the agreement you sign.
Postnuptial agreement case law
Looking for a real-life case where someone had a DIY postnup? Well, there aren’t many cases out there where a couple simply wrote up their own postnup, then got divorced, then litigated the postnup. It’s a rare scenario, which is why it’s not really recommended. The case law that exists (which we discuss below) shows that having an attorney for a postnup is important.
Yun Zhou v. Hao Zhang, 223 A.3d 775 (2020)
In a 2020 case stemming from Connecticut, a court held a postnup to be enforceable because it considered several factors:
- The nature and complexity of the agreement’s terms,
- The extent of and disparity in assets brought to the marriage by each spouse,
- The parties’ respective age, sophistication, education, employment, experience, prior marriages, or other traits potentially affecting the ability to read and understand an agreement’s provisions,
- The amount of time available to each spouse to reflect on the agreement after first seeing its specific terms and
- Access to independent counsel prior to consenting to the contract terms.
In this specific case, the court noted that the wife understood what she was signing, she had an attorney to advise her during negotiations, she was highly educated, and she acknowledged her understanding in the contract itself.
Bottom line? The court relied paritally on the fact that she had an attorney to uphold the agreement. This could potentially make your DIY postnup hard to enforce.
The bottom line on DIY postnups is that they’re flat-out risky
Postnups are intricate legal contracts that should be crafted by legal professionals. Not only may a DIY postnup simply not be enforced, but even in the off chance that it is, you may not have entered into it with full knowledge of the rights you were waiving and may be very dissatisfied with the results. Bringing in professional legal help can make sure you truly understand what you’re agreeing to and craft something that is beneficial to both you and your spouse.
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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