Disclaimer: we do not recommend that anyone write their own prenup. Unless you are a family law attorney specializing in prenups or HelloPrenup.com, you probably don’t have the knowledge base to create a valid prenup. However, if you are dead set on doing this, there are some things you should know about valid prenups. Keep reading to find out what those are.
What is a prenup?
A prenup is a contract that is signed between two people about to get married. This contract typically pre-determines issues, such as property division and alimony (i.e., spousal support), in the event of a divorce and sometimes death. A prenup may also cover topics of debt allocation, financial obligations during the marriage, who gets to stay in the marital residence, confidentiality, pet ownership, and much more.
A prenup not only protects your assets and gives you peace of mind if the worst-case scenario happens, but it can also be a great tool for spousal alignment. What do we mean by that? Well, during the prenup process, the couple is forced to discuss heavy topics such as death, divorce, money, children, financial goals, financial roles, and more. It may even be topics you haven’t discussed before. The prenup process helps the couple facilitate open communication and get a deep understanding of each other.
Ways to get a prenup
Nowadays, there are several ways you can get a prenup: a family law attorney, do it yourself (we don’t recommend this), online prenups, or a hybrid of online prenup + attorney.
The traditional way to get a prenup is to hire a family law attorney. This practice has been done for decades and can be a very reliable way to get a prenup. The downfall of this option is the pricing, of course. The average prenup costs $2,500 (compared to HelloPrenup’s cost of $599 per couple). And that’s just the average cost for a simple case. If you have a more complex set of finances or requests, you could be looking at a cost upwards of $10,000. Not to mention, lawyers need time to draft your prenup; between the heavy lifting of putting your needs into a contract and managing their other clients, a prenup can take weeks to complete.
In many states, you can create a prenup yourself. However, this may not fly in some states that require a lawyer. Even if you are in a state that allows do-it-yourself prenups without a lawyer, you are still walking on a dangerous tightrope with no tightrope experience. One slight misstep can get your entire prenup thrown out.
Online prenups are exactly what you’d expect: you generate a full-blown prenuptial agreement online without a lawyer directly writing it for you. Most online prenups are simply templates. By “template,” we mean it is made for the masses and doesn’t provide for any custom needs a couple may have. However, HelloPrenup is changing the game with online prenups. HelloPrenup is not just a one-size-fits-all contract, but instead a customized prenup that YOU control what goes into it. With our interactive questionnaire, you are able to pick and choose what clauses and terms make sense for your marriage.
Finally, there is a hybrid option of using both an online prenup and an attorney. With HelloPrenup, you can generate your prenup and then take it to a local lawyer for review. This way, you can ask an attorney to review it, answer legal questions, and even represent you (if that’s what you’re looking for). This option still saves you time and money by saving on the attorney’s hours they would have spent actually creating the contract. You skip that whole part and go right to the review and question phase. Now that’s efficient!
Writing your own prenup
Now, if you really want to write your own prenup, no one’s going to stop you. But, on the same token, no one can promise you that it will be valid and enforceable either. We do not recommend this as an option for creating a valid prenup.
If you are headstrong about doing this yourself, there are some things you should be aware of. For starters, the laws surrounding prenups are dictated by state law. This means that every state is different in terms of what it requires of a valid prenup. What one state requires, another state may not. In other words, what may be a valid prenup in California may not be a valid prenup in Florida.
Here are some requirements to include in your prenup to attempt to create a valid one. Again, state requirements vary, but the following requirements are pretty standard across the U.S.:
- The prenup must be in writing.
- The prenup must be signed by both parties.
- Some states require witnesses to be present for the signing of the prenup.
- The prenup must be entered into voluntarily (i.e., not under some type of force like coercion, duress, fraud, undue influence, etc.).
- The prenup must be notarized (this is true in many states, although not every state requires this one).
- The prenup must not include unlawful terms (don’t go including illegal acts or clauses that violate state laws).
- The prenup must not include unconscionable terms.
What to include
Making sure you follow the above requirements (and any additional state-specific requirements) is a good place to start. The next thing you need to consider is what you will include in the prenup.
Here are some of the common issues that are covered in a prenup:
- Determining what property should be yours and yours alone (i.e., separate property)
- Determining what property should become joint property (i.e., property subject to division at divorce, known as marital or community property)
- How to treat debt (both premarital debt and debt accrued during the marriage)
- Financial obligations during the marriage, such as if you will maintain a joint bank account or not
- Lump sum clauses
- Alimony (some states refer to this as spousal support or maintenance)
- Who will reside in the marital residence
- Pet ownership
- Social media image
- Life insurance
- Health insurance
- Infidelity (many states will not enforce this)
- And more.
After you get your prenup negotiated and in its final form, you can now get it notarized. You can get any prenup notarized, whether it was made by you, an attorney, or an online prenup. Nowadays, there are online notarization services where you don’t even have to leave your warm, comfy couch to get the job done. Companies like Notarize.com and NotaryLive utilize video chat to notarize your documents. It’s as easy as one-two-three! Almost as easy as getting a prenup through HelloPrenup.com!
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]