We’ll cut right to the chase–the answer is no; you cannot get a prenup without your spouse knowing. This is for several reasons, such as the requirement for two signatures on the prenup and the requirement of both parties to voluntarily sign an agreement. The laws of each state dictate how a prenup should be handled and every state agrees that signatures are required and voluntariness to sign the prenup is required. The result? You cannot unilaterally sign a prenup and/or fraudulently obtain a prenup and have it enforced.
The purpose of a prenup (a.k.a. Why you can’t get a prenup without the participation of your future spouse)
Let’s begin by addressing the main purpose of a prenup. The core purpose of a prenup is for both soon-to-be spouses to engage in the negotiation of their existing and future assets in the event of a divorce. Obtaining a prenup is intended as a proactive measure for couples to collectively agree upon the division of property, thereby alleviating the necessity for court intervention. It’s not designed for unilateral decision-making! Rather, it represents a collaborative agreement between two individuals who are on the brink of intertwining their lives together.
An example to demonstrate
Let’s use an example to demonstrate how wrong (both legally and morally) it is to have a one-sided prenup (i.e., getting a prenup without your spouse knowing). So, let’s look at an agreement that is similar to a prenup but in the business world.
Let’s say John and Sarah want to go into business together to create a company called Johnny and Sarah’s Widgets. So, they enter into a business partnership agreement to establish and operate Johnny and Sarah’s Widgets. Each partner agrees to contribute $10,000 in capital to initiate the business, with ownership of the company being evenly split between them. John will oversee client acquisition, financial operations, and accounting, while Sarah will lead project management, client relations, and marketing efforts. Major business decisions require mutual agreement, while routine operational decisions can be made independently within each partner’s area of responsibility. Profits and losses will be shared equally between the partners.
Now, let’s say John actually doesn’t want his business partner Sarah to know that they entered into this contract, so he either fraudulently creates one or unilaterally signs it–assuming it’s valid. *Insert buzzer noise here* Wrong! This is not a valid contract, as it takes two parties to mutually assent to an arrangement for a contract to be valid. John cannot just create a business partnership agreement without his business partner knowing about it!
You can see the parallels here to a prenup agreement. If we flipped the script and made John and Sarah soon-to-be spouses, it’s equally as wrong to have only one person aware of the terms they are agreeing to when it comes to money!
But what if my partner has no money? Can I get a prenup without my spouse knowing in that case?
If you’ve found your way to this article, you might be contemplating the notion: “But my soon-to-be spouse doesn’t have any assets, only I do, so surely I should have the right to make a prenup without their knowledge… it’s my money, after all.” We empathize with this perspective; however, it’s important to recognize that such a sentiment doesn’t align with the legal realities. Here’s why: Marriage entails specific legal entitlements for each party—rights to assets, inheritance, benefits, and more. Essentially, marriage forms a contractual bond recognized by law. When you enter into marriage, you’re entering into a comprehensive partnership encompassing financial, legal, and emotional aspects. Attempting to waive certain rights without your partner’s awareness amounts to legally withholding rights from individuals as stipulated by law.
In addition, many courts see marriage as a true partnership–regardless of wealth. And even if one person “has all the money,” the other party may be pulling their weight in other ways–emotional support, child care, cooking, household duties, job/education support, or all of the above.
Even further, the future is unpredictable. Even if hypothetically you were able to sign a prenuptial agreement without your partner knowing (which isn’t legally possible), consider a scenario where your soon-to-be spouse unexpectedly becomes wealthier than you (maybe through inheritance, gifts, they start a business, etc.). In such a situation, it would be fundamentally unjust to them, as they never had the opportunity to have a say in the disposition of their assets, but you did.
The laws preventing you from getting a prenup without your spouse knowing
If you’re still not convinced that this isn’t possible, we’re here to show you the facts… that is, the laws which blatantly and strictly prohibit you from getting a prenup without your future spouse knowing.
Reason #1: Prenups require signatures from both parties
Every state requires both parties to the prenup to sign the document. Here’s an example of what that law looks like in practice. In California, according to Cal. Fam. Code Section 1611, “A premarital agreement shall be in writing and signed by both parties.” Key words there are “both parties”–as you can see, this requires your spouse to actually know that there is a prenup.
Reason #2: Prenups require voluntariness from both parties
Virtually all states require both signers to also voluntarily sign the agreement. In other words, there was no existence of fraud, duress, coercion, mistake, misrepresentation, etc. They both knew what they were signing. So there’s no world in which you can say “Hey, honey, sign this document, it’s for our insurance” and then you secretly slip the prenup in there while they mindlessly sign off on something they believe to be an insurance document.
Reason #3: Unconscionability
There’s a little thing called “unconscionability” in prenup law and it’s basically a catch-all way for a court to say “nope, this prenup is not gonna fly.” If all else fails, there’s likely an argument for a prenup that someone didn’t know about being unconscionable. Every state has it’s own meaning for what is an unconscionable prenup, but the general overarching theme is that it is something that “shocks the conscience.” Now, we don’t have a crystal ball to say what a judge would definitely believe, but tricking someone into signing a prenup without them knowing or making one on their behalf without their knowledge is likely akin to shocking their conscience.
How to talk to your partner about getting a prenup
If you are here reading this article, you might be here because your partner simply doesn’t want one, and we feel for you. That is a tough situation to be in. But, unfortunately, the answer is not to get a prenup without them knowing. Check out our article here from a clinical psychologist who talks all about how to talk to your partner about a prenup. The gist of the advice is that the prenup conversation shouldn’t be a one-time discussion; forcing it to be so can lead to a negative experience. In addition, its important to initiate dialogue about prenups openly and collaboratively. Schedule these talks to alleviate pressure and ensure both partners have time to process. Approach conversations with positive intent, assuming the best of each other and seeking to understand concerns. Sharing fears and worries openly can strengthen the relationship and help address underlying issues. Use these discussions to explore personal values, priorities, and practice communication skills like making requests and compromises. While the conversations may not always be enjoyable, finding ways to reconnect and have fun afterward can reinforce love and commitment. And finally, seeking support from professionals like mediators, therapists, or trusted advisors can also be beneficial in navigating challenging discussions.
The answer is unequivocally, “no,” you cannot get a prenup without your partner knowing
In conclusion, getting a prenup without your spouse’s knowledge is not only legally not possible but also morally unjust. The fundamental purpose of a prenup is to facilitate a collaborative negotiation between both partners regarding the division of assets in the event of divorce. Attempting to bypass your spouse’s awareness or consent undermines the spirit of mutual agreement inherent in prenups. Additionally, legal requirements such as the necessity for both parties’ signatures and the assurance of voluntariness further reinforce this notion.
We understand that you may want to get a prenup but your partner does not, and that is why you clicked on this article. In that case, the best path forward may be open and honest conversations about your intentions, mutual respect for each other’s rights and concerns, and possibly reaching out to a counselor. We wish you the best of luck!
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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