Many people ask us, “How can I make sure my prenup stays private?” But what they’re really asking is, “Will my prenup somehow wind up on public record somewhere where people can look up all of my personal, financial, and intimate details?” And the answer is quite simple: a prenup will not be put on public record UNLESS you file it for collateral purposes or you contest it in court. This article will explore the circumstances under which prenups can become public record and the other ways you can protect your privacy.
Background on prenups and if filing them is required
Prenuptial agreements (i.e., prenups) are private contracts between two people about to get married that are not required to be filed anywhere. In other words, you do not need to file your prenup or “put it on public record” to make it valid. You must simply execute your prenup in the manner that is required by your state and then keep it safe and sound somewhere. Generally, we recommend keeping three original signed and notarized copies. One for you, one for your partner, and one in a joint location. Then you should also keep a digital copy somewhere, as well. Again, there is no need to file the prenup in order to make it valid and enforceable.
Prenups may become public record if contested in court
Now, just because, by default, prenups are not public record doesn’t mean that they cannot become public record in some way. One of the most common reasons why a prenup may become public record is if it is contested in court. If one party challenges the validity of the prenup or believes that it is unfair, it may become part of the public record as evidence in the case.
For example, Henry and Hannah are married, and they have a prenup. They are now getting divorced after ten great years of marriage. However, Henry feels that the prenup is unfair to him, so he challenges it in court during the divorce. In order for the court to process and make a decision on the validity and fairness of the prenup, the court may need to enter the prenup document into the court record, which may ultimately end up being public record. (Note: sometimes, you can request a court to anonymize/impound your information in a divorce case, but there usually needs to be an important reason. Ultimately, it’s up to a judge).
Prenups may become public record if filed for collateral purposes
Another situation where a prenup may become public record is if it is filed for collateral purposes, such as to obtain a loan or secure a mortgage. We want to underline that prenups generally do not need to be filed for any other reason other than collateral purposes. In the case that someone needs to file their prenup for collateral, the prenup may be accessible to certain individuals or entities who have a legitimate reason to access the agreement.
For example, if a couple applies for a joint mortgage, the lender may request a copy of their prenup as part of the loan application process. While the lender may be required to keep the prenup confidential, there is still a risk that the agreement could become public record.
Adding a confidentiality clause to protect privacy
Another way to protect your privacy would be to add a confidentiality clause to your prenup. While this doesn’t have to do with your prenup going on public record, it can still help protect your privacy. By adding a confidentiality clause, you can prevent your spouse from talking about private information, including the contents and/or existence of the prenup.
This clause prohibits either spouse from sharing the details of the prenup with anyone outside of the marriage, including family members or friends.
While a confidentiality clause cannot guarantee that a prenup will never become public record, it can help to reduce the risk of the agreement being shared with others.
Frequently Asked Questions (FAQs) about prenups
Q: Are prenups automatically placed on public record?
A: No. By default, they are not on public record; they are considered private contracts.
Q: In what situations can prenups become public record?
A: If they are challenged in court or filed for collateral, such as to obtain a loan.
Q: Can a prenup remain private even if challenged in court?
A: Yes, the prenup could still remain private even if challenged in a court by requesting that your information be anonymized/kept confidential (i.e., impounded) or if the contract language itself is not needed for the court to make a decision on the enforcement.
Q: Do I need to file my prenup for it to be valid?
A: No, generally, prenups do not need to be filed anywhere to be considered valid. However, some people may elect to file their prenup for collateral purposes, which is not a requirement for prenup validity.
Q: What steps can I take to protect the confidentiality of my prenup?
A: You can add in a confidentiality clause that prevents your spouse from sharing private information, including information about your prenup, with anyone.
Conclusion
The bottom line is prenuptial agreements are not public record by default, but they can become public record in certain circumstances, such as when they are contested in court or filed for collateral purposes. However, couples can take steps to protect their privacy by including a confidentiality clause in their 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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