Congrats on the engagement! If you’re here, it’s likely that marriage is on the horizon. This entails discussions about finances, assets, and the future. In recent years, the idea of crafting one’s own prenuptial agreement, or “DIY prenup,” has gained traction among couples seeking to establish clear guidelines for potential financial scenarios at a cheaper cost than traditional methods. But is the process as straightforward as it seems? While technically allowed in many states, navigating the legal complexities of a DIY prenup requires careful consideration. From understanding state-specific laws to avoiding common pitfalls, delving into the realm of DIY prenuptial agreements entails a series of risks and considerations that couples must weigh before proceeding. Let’s get into it!
Is making your own prenup legal?
Well, technically, in most situations, yes, making your own prenup is allowed. In most states (with a few exceptions), there are no laws prohibiting a person from making their own prenup. However, some states say that in certain situations, a lawyer is necessary. For example, in California, you don’t need a lawyer…BUT if you alter spousal support in your prenup, then you are required to have legal representation. (I.e., in that case, you cannot make your own prenup, you need a lawyer to sign off on it). Even then, you technically both could make the prenup yourselves, bring it to lawyer(s), have them review it, explain the terms, and then have the lawyers sign off on it.
Confused? Okay, we’ll keep it simple. The bottom line is, yes, making your own prenup is usually “legal,” but this answer can change depending on your state laws and your specific situation (like in California).
Can you make a handwritten prenup, and it be considered valid?
Some people ask if they can scribble down some things on a napkin (He gets the house, I get the condo) and call it a day. Well… not quite. While you technically can make your own prenup (in certain situations and certain states), you still have to follow your state’s laws. For example, every state requires prenups to be signed by both spouses. And other states require notarization for a prenup to be valid. I’m not exactly sure if notarizing a napkin is even allowed. You are better off writing your agreement down on a piece of paper (whether handwritten or typed) and signing it in front of a notary. Also, beware that a few states actually require witnesses to be there when you sign a prenup, and they are also required to sign off on the document. Moral of the story? Technically, yes, you can make a valid handwritten prenup, as long as you follow all of your state’s laws in doing so!
Risks of a DIY prenup
Let’s make it very clear: we are not suggesting you go make your own prenup. There are many laws in place that you must follow in order to have an enforceable agreement. It can be very easy to miss something that is required for a valid prenup, and each state is very different, so don’t rely on things you hear from your friends! Here are all of the risks you may encounter when DIYing your prenup.
Not following formality requirements
Formality requirements such as putting it in writing, getting it signed, notarizing, and having it witnessed are all examples of the specific formalities that some prenups require. In addition, some states have very unique and specific formality requirements. Take Louisiana, for example. Louisiana has a very unique and distinct formality for executing a prenup. Take a look at the statute:
“A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.” (Art. 2331)
As you can see, a Louisiana prenup requires it to be made by an “authentic act” or “by an act under private signature duly acknowledged by the spouses.” Say what?! Yes, this is one of the more complex formalities that you’ll see across states, but nonetheless, it is required! And without it, your prenup is invalid. As you can see, writing your own prenup can get pretty complicated if you aren’t able to decipher these formalities required by your state.
Including prohibited clauses
If you include prohibited clauses in your prenup, you risk getting the whole thing invalidated. For example, most states prohibit the addition of child matters in prenups. In other words, you cannot include child custody arrangements or child support stipulations in a prenup. However, there are very limited exceptions to this in certain states where it may be allowed. Tread lightly, though, because this can get your prenup thrown out.
Other prohibited clauses include certain lifestyle clauses or clauses that incentivize divorce. Lifestyle clauses may include infidelity clauses in some states or clauses that enforce non-financial behavior, such as sex, weight loss, or other behaviors.
Not following enforceability requirements
Prenups need to follow a set of formalities, such as signatures, notarization, etc. But they also need to follow enforceability requirements, such as not being unconscionable and being entered into voluntarily. These types of requirements are less straightforward (a signature is a signature, but what does “voluntarily” or “unconscionable” really mean). Well, these enforceability requirements are defined by each state. What may be considered an unconscionable agreement may be different in California versus Illinois.
Let’s talk more about what cannot be included in a prenup
Let’s dig a little deeper into the risk that if you create a DIY prenup, you may include some off-limits topics and wind up with an invalid prenup. One of the major pitfalls of creating your own prenup is not knowing what is okay (and what is not okay) to put in the contract. For example, putting in clauses about property division upon divorce, alimony (in some cases), and inheritances are all fair game (among many other clauses, of course). But what is NOT fair game? Here are some things you might include that could get you into trouble:
- Clauses about child custody
- Clauses about child support
- Clauses that incentivize divorce (meaning it’s more beneficial to divorce than stay married)
- Clauses that are against public policy (this may include infidelity clauses in some states)
- Clauses that are inconsistent with other clauses (if you have two clauses that conflict with one another, your prenup could be considered invalid)
- Clauses that require illegal acts (this is hopefully fairly obvious, but don’t mandate that your spouse commit a crime!)
I just want a free prenup…how can I get one?
If you clicked on this article, you’re likely looking for a cheaper option for getting a prenup. We get it. You want the protection without the hefty cost. Well, beware of any of the “free prenups” you find online, as they may be unenforceable for any of the reasons above. For example, they may not be state-compliant with your state’s laws or may include clauses that are unenforceable in your state, such as infidelity clauses. All this to say, getting a valid and enforceable, and also free, prenup is going to be tough. However, the good news is that HelloPrenup offers relatively low rates for prenups, especially compared to the average prenup cost of $8,000 per couple when using an attorney! With HelloPrenup, you can get a prenup for just $599 per couple. Then, if you want (or require) a lawyer, you can add optional attorney services for flat rates.
DIY prenups are risky–Consider using HelloPrenup!
As you can see, it’s important to understand that while the idea of a DIY prenup might sound tempting at first, there’s a lot more to it than meets the eye. From navigating state laws to avoiding tricky clauses, the process can quickly get overwhelming. That’s why it’s worth considering getting some expert help, whether that’s from a lawyer or a service like HelloPrenup. By taking this step, you can ensure you are setting yourselves up for a solid and legally binding agreement that truly reflects your needs and interests
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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