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.
What sensitive information is included in a prenup?
Prenups contain lots of sensitive information, such as financial information, personal info, and certain private marital decisions.
- Financial information: In the financial disclosure section, you are required to list out the values of all of your assets, income, debt, and even future inheritances. In some instances, couples may include the actual statements of different accounts, such as bank statements or investment accounts.
- Personal information: Where you live, where you work, your age, your health, and the number of children you have are some of the various pieces of personal information you will be required to include in your prenup.
- Private marital decisions: Whether you want to or plan to have children, whether you will have a joint bank account, whether you will file taxes jointly, and how you want your property treated upon divorce are just some of the different marital decisions that will be contained within a prenup.
Understanding prenups: No filing is required
What is a prenup? A private contract between engaged couples addressing potential asset division and financial issues in case of divorce. A prenup can also cover matters that occur during the marriage, such as filing taxes, property management, and joint bank accounts.
Do prenups need to be filed anywhere?: NO! Prenups DO NOT need to be filed with any court or government agency to be valid. All you need to do is securely store multiple original copies (and consider keeping a digital version).
What makes a prenup valid and enforceable?
- Following your state’s laws regarding execution (such as signing, putting it in writing, having witnesses, and notarizing).
- Following your state’s laws regarding enforcement (such as voluntariness, unconscionability, etc.)
Prenups are private by default but may become public if contested
Now, just because, by default, prenups are not public record doesn’t mean that they cannot become public record in some way.
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Key Point: While prenups are generally private contracts, they can become public record if contested in court during divorce proceedings.
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Why they become public: If one spouse challenges the prenup’s fairness or validity, it becomes evidence in the case, potentially entering the public record.
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Example: If Henry and Hannah divorce and Henry disputes the prenup, the court may need to examine the document closely, making it part of the case file, in which case it may become 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.
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Key Point: Although prenups are typically private, filing them for collateral purposes (e.g., securing a loan) can make them accessible to certain parties.
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Filing still not required for validity: It’s important to note that this filing is necessary only in specific situations, such as for collateral, but it is not a general prerequisite to the validity of a prenup.
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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.
Protecting Privacy with a Confidentiality Clause
If you clicked on this article, you may be concerned with privacy and ensuring your prenup stays private. One way to add an extra layer of protection for privacy is with a confidentiality clause.
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What it is: A clause within your prenup restricting both spouses from sharing the agreement’s details or existence with outsiders (like even friends and family).
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Purpose: While it can’t fully prevent your prenup from becoming public in a legal contest, it discourages the sharing of sensitive details, such as how much money you have or the values of certain assets or the clauses included.
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Benefits: Helps to:
- Minimize gossip or potential judgment from those outside the marriage.
- Protect potentially sensitive financial information.
Conclusion
We understand that privacy is of utmost importance to you! And prenups contain pretty sensitive information. But not to worry–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.
Frequently Asked Questions (FAQs) about prenup privacy
Let’s discuss some more commonly asked questions regarding prenups going on public record.
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.
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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