Prenuptial agreements are governed by state law, and every state has its own prenup laws. As if the legal system wasn’t complicated enough! For starters, you need to ask yourself: “what state law applies to me?” and “what do those laws say about prenups?”
Fortunately, there are many similarities in prenup requirements state-to-state, but there are some extremely contradictory requirements. What one state says is completely acceptable may be a hard no in another state. This is why it’s crucial to know your applicable state law. Let’s talk about the similarities in all state prenup laws.
What do all prenups have in common?
Luckily for us, there are several things you can count on being true in all states. To start, all prenuptial agreements must be in writing. That makes sense. You don’t want to create a prenup verbally with your spouse because how could you prove it’s legitimate? It doesn’t work. Put it on paper or do the time later! (Okay, you won’t do time, but you will certainly spend a lot of energy trying to enforce a verbal prenup).
Next up is your signatures. This one seems pretty obvious, but you’d be surprised. Make sure you and your spouse sign the prenup itself. You sign every other contract you encounter, so of course, you also have to sign your prenup. Go on, give it your best John Henry.
Okay, now we’re going to dive into the meat of the prenup. What you can and can’t include in the terms of the agreement. All states agree that you cannot include unlawful terms. You can’t write into a prenup that “upon divorce, Husband may commit arson upon his Wife’s vehicle” or “Wife may murder Husband upon divorce.” That’s clearly an exaggeration, but you get the idea. You can’t include illegal things.
Along the same vein is signing a prenup under fraudulent or coercive circumstances. You can’t tie up your husband, hold a knife to his throat, and tell him to sign the prenup or else. That’s coercion at its worst degree. It may be a lot more subtle in real life, such as “if you don’t sign this prenup, you won’t have access to certain funds or property.” In addition, you can’t tell your husband that he’s signing off on a pizza delivery order when really, he’s signing a prenup. That would be fraud at its weirdest, but you see where this is going.
These are some of the basic commonalities that all state laws encompass in regard to prenups. Let’s move on to the five ways that states differ in how they treat prenups.
Some states require prenups to be notarized. A notary is a person authorized to witness signatures on legal documents. Notaries help show the court that the agreement is authentic and legitimate. You can get your document notarized at a bank, shipping store, law firm, and even online. Massachusetts, California, and New York (among other states) require your prenups to be notarized.
On the other hand, Texas and Florida (among other states) do not require your prenup to be notarized. If you live in a state that requires a notary and don’t get it, your prenup can be thrown out and invalidated. All your hard work and efforts to get a prenup done will be destroyed without a notary.
Some states require one or two witnesses for a prenup to be valid. This means that one or two people must watch you sign your prenup and sign it themselves. Depending on the state’s requirements, these can be notaries, state officials, or even random people. Witnesses help show the court that the prenup is authentic and legitimate.
Other states may only require one notary as a witness, or even one notary and two witnesses. Then others may require no witness at all! Louisiana, Georgia, and Minnesota, among other states, specifically require witnesses to validate your prenup. Some states like Texas and Michigan highly, highly recommend you have witnesses. Then there are states like California and Massachusetts that don’t require witnesses at all.
Representation by an Attorney
Some states require that you execute a prenup with your own attorneys (that means two attorneys, one for each of you). Having an attorney review your prenup helps show the court that you had a full understanding of what rights you were giving up and that you were not coerced into signing the prenup.
Alternatively, some states say, “good luck and god bless,” and allow you to write your own prenup without the advice of an attorney. For example, New York, California, Massachusetts, and Texas do not require you to have an attorney review your prenup, although it may be highly suggested. In California, they require you to sign a waiver if you pass up a lawyer’s advisory.
All the way down in the sunshine state, Florida does require you to have an attorney review your prenup. Both parties must have their own separate lawyer. This means that if you do not have a lawyer review your prenup, the court will automatically throw it out in the divorce, and you will have to divide your assets by the state law and not your own choice.
In prenup world, financial disclosure means divulging your assets, real estate, income, debts, bank accounts, and more to your future spouse. How can you contract away rights in a prenup if you don’t know exactly what you are contracting away? Some states have a very hard line on what financial disclosure should look like, and others have a softer line regarding financial disclosure. For example, Massachusetts has a hard and fast rule: explicitly disclose it all or risk invalidating your prenup. If you don’t list out your assets line by line, item by item, you are at a very high risk of having your prenup thrown out in MA.
On the other hand, Texas is a little less strict and will only look at financial disclosure if the prenup is unconscionable. Meaning that the courts will only scrutinize your level of financial disclosure if it finds the prenup particularly unfair. Florida is somewhere in between: you need to provide full financial disclosure, but if it’s not minutely detailed or exact, it’s okay. Way over on the west coast in California, courts say that if the spouse had even adequate knowledge of the finances, then that’s enough. No full disclosure is necessarily required (although it’s recommended to avoid a lawsuit). For more information on financial disclosure, click here!
Some states have a waiting period requirement for prenups. For example, California has a “7-day rule” where there must be at least seven days between the presentation of the final prenuptial agreement and when the parties sign it. The rationale here is to provide the spouses enough time to obtain an attorney and make sure both spouses have considered the impact of the agreement. Ohio also has a similar law to this, requiring “ample time” in-between receipt of the prenup and the signing of the prenup. Other states will not consider a waiting period at all or simply use a reasonableness test to determine if it was enough time.
Which state law applies to you?
In today’s mobile and remote world, more and more people are hopping from state to state to live and work. So, what happens when you execute a prenup in one state, get married in another, and then try to enforce it in yet another state? It’s a tricky question and can vary significantly depending on your state (shocker, we know).
One way to avoid this issue completely is to include a choice of jurisdiction clause in your prenup that mandates which state law will apply to the prenup. It varies wildly. Whichever state you choose will govern any dispute about the validity or enforceability of the prenup. If you do not include a choice of law clause in your prenup, the state you are seeking a divorce in may apply its own rules or may even apply the law of the state where the couple spent the most time. Read more on the choice of law and different states here.
The more requirements you can meet, the better. Most things that may not be required in your state, such as witnesses, may be recommended just for extra cushion. For example, if your state doesn’t require a notary, but you get it notarized, more power to you! It’s just an additional way to cover your bases to ensure a valid and enforceable prenup. Remember, all prenups must be signed in writing, have legal terms, and not be coerced or fraudulent. Easy peasy. The things that vary from state to state are the notary and witness requirement, whether you should be represented by a lawyer, the strictness of financial disclosure, and waiting periods. These are all fairly easy to do, so it would behoove you to at least try to do them all.
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