What is a prenup, and why is it important?
A prenup is a contract that is signed between two people about to get married. This contract typically pre-determines issues in the event of a divorce and sometimes death. A prenup may cover topics such as property division, alimony, debt allocation, financial obligations during the marriage, 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, like how you would want to handle debt that was incurred during the marriage. All this to say, the prenup process helps the couple facilitate open communication and get a deeper understanding of each other.
Ways to get a prenup
Nowadays, there are several ways you can get a prenup: a family law attorney, an online prenup, or a hybrid of online prenup + attorney (i.e., what HelloPrenup offers).
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 according to a HelloPrenup survey of attorneys across the US, ….. And that’s just the average cost for the average 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 or even months to complete.
Online prenups are exactly what you’d expect: you generate a full-blown prenuptial agreement online without a lawyer writing it specifically 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 hire an attorney directly through our platform (in select states). With HelloPrenup, you have the option of both an online prenup and an attorney. You can purchase a $99 Q&A with one of our attorneys in your state and/or a $699 prenup review and attorney signature. Keep in mind, the average prenup for two people is …… So, this hybrid HelloPrenup option saves you time and money by cutting down 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 you are playing with fire as there are a lot of rules and regulations about the creation of prenups. Each state has its own laws on what is considered a valid and enforceable prenup. Sometimes, the law is written in statutes; other times, it’s determined by case law. So, unless you’ve been brushing up on your state’s statutes and case law about prenups, we do not recommend this as an option for creating a valid prenup.
Another landmine to be aware of is that some states actually do prohibit writing your own prenup in certain situations. For example, California has a law that says if you alter alimony in your prenup, you are required to have legal representation–i.e., you can’t write it yourself. (See Cal. Fam. Code Section 1612). So if that’s you– a California resident who wants to waive alimony in your prenup, you actually cannot write your own prenup.
Prenup Requirements
So, what goes into a valid prenup? Well, first, remember that each state dictates what is required for a prenup. What may be a perfectly valid and enforceable prenup in Minnesota may not be considered the same in California. However, there are some general requirements that many states deem necessary for a prenup:
- 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.
- Some states require notarization for a prenup to be valid. (Even if your state doesn’t require this, it’s usually recommended anyway).
- The prenup must include some level of financial disclosure.
- 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 not include unlawful terms (don’t include illegal acts or clauses that violate state laws, such as including child custody arrangements).
- The prenup must not include unconscionable terms.
There are also unique requirements that may only exist in one state. For example, California has a rule known as the 7-day rule, which basically says you must wait seven calendar days between the final version of the prenup and the signing of the prenup. This gives each person time to get a lawyer (if they want) and digest the terms of the agreement.
What to include in your prenup
Now that you understand what makes a prenup valid and enforceable–what can you put in it? Can you put anything you want/ Well, not quite, but there is a lot of room to get creative. Again, this also is determined by state law. For example, California doesn’t enforce infidelity clauses, but other states may.
Here are some of the common topics that may be 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 whether you will maintain a joint bank account and how you will file taxes
- Lump sum clauses (i.e., payment from one spouse to the other–separate from alimony)
- Alimony (some states call this spousal support or maintenance)
- Who will reside in the marital residence once the marriage ends (will someone need to vacate the home within a certain amount of time?)
- Pet ownership
- Confidentiality
- Social media use
- Life insurance
- Health insurance
- Infidelity
- And more.
Keep in mind there are also defined off-limit topics, such as child custody and child support. Virtually all states (with very few exceptions) say that you cannot include child support and custody terms in your prenup. This is because it’s difficult to guess what the child’s best interests will be at the time of divorce. A lot can change from the time you make a prenup to the time you get a divorce. Also, make sure to leave out any illegal clauses or clauses against public policy.
What is notarization?
Notarization is the act of signing a document in front of a Notary Public. Notary Publics are state-appointed officials who are trained in verifying your identity and ensuring you understand what you are signing. It’s a way to deter fraud and prove that you are the one who actually signed your prenup in a sound state of mind. Once your prenup is ready to go–i.e., you and your partner agree on all terms, you can now sign and notarize. Whether the prenup was made by you, an attorney, or an online prenup, it may be notarized. The good news? You can actually get your prenup notarized online via HelloPrenup. It’s as easy as 1-2-3. All you have to do is finalize your prenup and go to the “Review & Notarize” section in our platform. Within minutes, you’ll be sitting in front of a virtual notary who can officially notarize your document for you. You don’t even have to leave your warm, comfy couch to get the job done!
Why is notarization important?
You may be wondering if you really need to get your prenup notarized. Notarization is important because a Notary Public is confirming that both people are who they say they are, they are of sound mind when signing, and they understand that they are in fact signing a prenup. In fact, in some states, it is a formal requirement. For example, Georgia, Louisiana, Minnesota, and Missouri are a few of the states that formally require notarization for a prenup to be considered valid. However, even in those states that do not require it, it can be an excellent added layer of protection for your prenup. In fact, we recommend all prenups get notarized–it’s a quick and affordable way to deter any arguments against fraud if your prenup is ever challenged down the road.
HelloPrenup’s alternative to writing your own prenup and having it notarized
Instead of writing your prenup yourself and getting it notarized–now you can do all of that through the HelloPrenup platform. You can get a prenup and have it notarized all in the same day… from your couch. Yes, you read that right. We offer virtual notarization services directly through our platform for a seamless prenup experience. It costs just $50 to get your prenup notarized within just a few clicks. The process works like this: Finish your prenup, initiate your notarization session, wait for a live virtual notary to join your conference call, verify your identity with the Notary Public, sign your document, and voila! You’ve got yourself a signed, sealed, and delivered prenup agreement. Easy peasy!
You can get your prenup notarized whether it was written by you, an attorney, or an online platform
Writing your own prenup isn’t recommended, but if this is your chosen path, yes, you can get it notarized. Because of the intricacies of family law, coupled with varying state regulations and requirements, making a DIY prenup a risky endeavor. Without proper legal expertise, there’s no guarantee that a self-written prenup will hold up in court, potentially leaving you vulnerable in the event of divorce or death. So, whether you opt for a traditional attorney-led approach, utilize online services like HelloPrenup, or a hybrid model combining both, the goal remains the same: to create a comprehensive, legally sound agreement that addresses your unique needs and concerns of both you and your partner.
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]
0 Comments