Have you ever heard the story of Steven Spielberg’s DIY prenup? He tried to write down his prenup on a bar napkin (allegedly). Guess how that ended? Yep, you guessed it–it was not enforceable because he did not follow the proper state laws.
Since you clicked on this article, we get the feeling you want a “do-it-yourself” prenup. Lucky guess, we think! Anyway, we don’t recommend sitting down, pulling out a pen and paper, and going to town on your DIY prenup. While it may not be completely out of the question (depending on your state), it’s not the safest way to get a prenup.
But we won’t sit here and sell you on it; you can read why getting a DIY prenup is dangerous for yourself below.
What is a prenuptial agreement?
Before getting married, a couple may enter into a contract known as a prenuptial agreement, or “prenup.”
A prenup sets out financial plans during the marriage and in the event the marriage ends. These financial plans often include what should happen to certain properties, such as real estate, bank accounts, and retirement funds, what should happen to any debt, and alimony (i.e., spousal support).
There are also non-financial topics that can be covered in prenups, such as confidentiality clauses, social media image clauses, pet ownership (i.e., pet “custody), and much more.
A step-by-step guide to getting a prenup (with timeline stamps)
If you are planning on creating a DIY prenup, here are the steps you might consider taking to make it happen:
- Start the prenup conversation (12 months pre-wedding): Broach the prenup topic with your partner. Frame it as a proactive step for mutual protection, not a sign of distrust. Giving yourself a solid runway of 12 months allows for strategic planning, time to “sleep on it,” discussions about everything from death to finances, time to figure out how you’ll get the prenup and more!
- Define your goals (6 months pre-wedding): Discuss what your prenup should cover: asset division, potential alimony, how to handle premarital property, how to handle gifts and inheritances, taxes, death, etc. With HelloPrenup’s platform, you are able to define your goals for your prenup by answering a detailed questionnaire with plenty of legal resources to help you define your goals.
- Gather financial documents and information (6 months pre-wedding): Both partners must fully disclose assets, income, debts, future inheritances, etc. – everything that is financially relevant. And, no, you cannot skip anything (and we mean it!). For example, people ask all the time, “But what if I don’t plan on keeping my [insert any asset here] separate? Do I still have to disclose the value of it?” And the answer is YES!
- Time to negotiate (3-6 months pre-wedding): Collaborate with your partner to come to mutually agreeable terms. HelloPrenup’s platform makes negotiating super simple by laying out any discrepancies between you. Open communication and compromise are crucial. Get this process started as soon as possible.
- Careful review (2-3 months pre-wedding): Don’t just sign the agreement! Read and re-read the prenup draft to ensure it reflects your understanding and the agreed-upon terms. Seek out attorney services via HelloPrenup’s platform if necessary.
- Sign and notarize (As soon as possible within your state laws): Signing finalizes the prenup. If you are running late on this–don’t worry; HelloPrenup has you covered. You can virtually notarize via the HelloPrenup platform with our partnership with Proof, where you can get access to virtual notaries 24/7.
What are some reasons for a prenup?
Prenups (despite their sometimes bad rep) can actually be proactive tools for a healthy marriage. Let’s break down some common reasons why financially savvy couples opt for a prenuptial agreement:
- Protecting Existing Assets: If you enter a marriage with significant assets (like a business, property, or inheritance) or plan to make future assets one day, a prenup can help make sure those assets stay yours in the event of a divorce. Let’s say you don’t own anything right now, but you plan to make money and buy property in the future. A prenup can help!
- Managing Debt: A prenup outlines how premarital and marital debt will be handled, preventing one spouse from absorbing the responsibility for the other’s financial obligations. And, yes, you can be responsible for your partner’s debt, even if your name isn’t on it.
- Caring for Children from Previous Relationships: Prenups may protect the inheritance rights of children from prior marriages, making sure your assets go to your intended beneficiaries (i.e., your children, not your future ex-spouse).
- Planning for Alimony: Decide on alimony (a.k.a., spousal support) terms in advance. This can streamline a divorce process and prevent drawn-out legal battles. Leaving alimony up for the courts to decide can take quite a toll on your pocketbook and your mental health.
- Business Ownership: Protect business interests and prevent messy ownership disputes, especially if your partner might become involved in the business. For example, if you and your partner plan on possibly opening a business together one day, sorting out ownership and management of said future business is a smart idea!
- Peace of Mind: Prenups offer clarity and reduce uncertainty about finances. You aren’t leaving your financial well-being to the “what-ifs” and can sleep soundly at night knowing that whatever life throws your way, you’ll be prepared.
- Strengthens the Relationship: The act of getting a prenup requires in-depth discussions, the sharing of finances, and collaboration on a shared future vision. This level of communication can strengthen the foundation of a marriage based on transparency. Plus, think of the prenup process as your first joint task as a future married couple!
Important Note: Prenups aren’t just for the wealthy! They can be beneficial for couples at any income level who want to protect their individual assets that they own now or may make in the future!
Requirements for a valid prenup
State law dictates what the requirements are for a valid prenup. What is considered a valid prenup in New York may not be valid in California. There are a certain set of requirements that each state lays out, and that must be followed if you want to have your prenup enforced at any point in time.
So, with that being said, what are those requirements? Again, “requirements” means what is needed to create a valid prenup. Generally, most states require the following:
- In writing. The prenup must be in writing and not a verbal agreement.
- Both parties sign it. Both fiancés must sign the prenup. HelloPrenup even recommends initialing each page, as well.
- Notarization. Some states require this; some do not. For those states that do not require it, it still doesn’t hurt to get it notarized, just in case.
- Witnesses. Some states require witness(es) to the execution of the prenup. Not all states require this one, but some do! If you live in a state where this is required, then you will need to check with your state law and see how many witnesses are required.
- Financial disclosure. Every state requires some form of financial disclosure. This means sharing all assets, debts, income, and future inheritance with your partner. Why? Because each person needs to understand what they’re contracting to (i.e., what rights they’re giving up).
- Signed voluntarily. All states require this one. It basically means that both parties signed the prenup of their own free will, not through some type of force, such as coercion or duress. For instance, a court is not going to hold you to the terms of a contract you were forced into signing.
- No unlawful terms. Nothing illegal, people! It’s that simple. Keep out all illegal acts. Nothing against the law. Common sense!
- No unconscionable terms. Do not include any provisions that are shockingly unfair. Not everything has to be 50/50, but it shouldn’t also be overly one-sided.
- No child custody or child support terms. Virtually all states do not allow you to include child custody or child support terms in your prenup. Why? Because child support and custody are not your rights to give up–they’re your child’s. You and your partner cannot pre-determine what will happen.
What to include in your prenup
Alright, you know what requirements are necessary to formulate a valid prenup, but what actually goes into the prenup? What is the substantive matter of the contract? Let’s dive in…
- Property division. What property should be considered separate property (i.e., yours and yours alone), and what property should be considered marital/community property (i.e., shared property, subject to division in a divorce)?
- Debt allocation. How will you handle premarital debt and debt incurred during the marriage in case of divorce? Should it be separate debt or marital/community debt? Remember, if it’s marital/community debt, it may be subject to division upon divorce, meaning both parties may become responsible for some of the debt, no matter whose name is on it.
- Joint bank account. Whether or not you two will maintain a joint bank account during the marriage or have separate accounts. If you choose a joint account, you should discuss how much each person will deposit into the bank account monthly and how expenses will be paid from the account.
- Lump sum payment. Will one party be required to pay the other a lump sum payment upon divorce? This may be useful for one spouse who has significantly more assets than the other or if one spouse decides to forego a career to stay home with the children.
- Alimony (i.e., spousal support). Will you and your partner waive alimony altogether, or leave it up to the court to decide if and how much alimony is appropriate?
- Gifts and inheritances. What will happen to gifts (e.g., Christmas or wedding gifts) and inheritances? Should those things be treated as separate property, or are you okay with it becoming marital/community property and possibly subject to division in a divorce?
- Marital residence. You may outline who gets to stay in the marital residence and for how long, if you divorce. This clause may be beneficial for stay-at-home parents so they and their children can remain in their primary household.
- Confidentiality clause. Do you want to keep certain information private? Well, you can do so by adding a confidentiality clause into your prenup to prevent your spouse from leaking any information about you. This may be pertinent if you have a business.
- Social media image. You can add a clause that requires the other spouse not to post any humiliating or disrespectful content about you. And if they do, they have to pay the price.
- Pet “custody.” Who gets the pets? You can outline which spouse gets to keep which pet and be financially responsible for the pet. Some states even allow a visitation schedule!
Bottom line: Phew, that’s a lot of stuff! Just for the record, that’s not an exhaustive list of everything you can include. There are other things like non-competes, sunset clauses, alternative dispute resolution clauses, engagement and wedding ring clauses, and more. No need to worry, though; HelloPrenup has all of these options for you on our online platform. You can opt-in or out of them and make them your own.
Disadvantages of a DIY prenup
While a DIY prenup may sound nice, it’s vital to be aware of its limitations and the legal pitfalls you might encounter. Here’s why relying solely on a DIY prenup can be risky:
- State-Specific Laws: Prenup laws are complex and vary significantly between states. Generic templates may not account for your state’s specific requirements, leaving your prenup invalid and unenforceable in court. For example, did you know a New York prenup must be signed in the same way as a deed? Who the heck knew?
- Improper Financial Disclosure: DIY forms might not prompt you to consider all potential assets (e.g., retirement accounts, intellectual property, future inheritances). And/or may not assist you in filling out financial disclosure according to your state’s laws. Failing to address these things can lead to unexpected disputes later on.
- Unfair Terms: Without legal guidance, you might include provisions that are overly one-sided or deemed unconscionable by a court. This jeopardizes the entire agreement and could leave you with no agreement at all.
- Lack of Negotiation Support: Negotiating sensitive financial matters with your partner can be challenging. A DIY prenup doesn’t offer you the support in navigating differences and reaching mutually agreeable terms with your future spouse.
- False Sense of Security: A poorly drafted DIY prenup can create a false sense of protection. You might not discover its flaws until it’s too late.
Takeaway: DIY prenups can be a good starting point, but they are not a replacement for professional legal advice or platforms that incorporate the proper protocols, especially if you have complex assets, significant debts, or concerns about fairness.
Ways to get a prenup
Now, we know you clicked on this article because you want to see how you can “do it yourself,” but you may need some help, and we have options for you!
Online prenups – HelloPrenup
HelloPrenup helps you do it yourself. HelloPrenup offers a dual participation platform in which you invite your partner, and you both fill out a questionnaire.
- Two-Party Questionnaire: The questionnaire helps you understand what clauses you can include, what to say in those clauses, and what they mean. You can also opt out of many of them if that’s what feels right for you. For example, if you want to leave alimony up to a court, you don’t have to discuss alimony in your prenup.
- Negotiate: After both you and your partner fill out the questions, you will need to negotiate any discrepancies. So, let’s say your partner said that they want to waive alimony but you did not. You will need to come to an agreement on that term in order to move forward. This feature gives you both the autonomy to negotiate this on your own terms… all from home!
- Finalize: Then, all that’s left is to generate the prenup, sign, and notarize! This is super simple to do with the platform. You can e-sign and notarize (in select states) virtually, so no more printing or waiting in line at the bank for a notary.
- Cost: The best part? It’s just $599 per couple. If you want to add on Attorney Services, you can do so for an additional, flat, discounted rate. For example, a Q&A session with a vetted attorney in your state costs just $49! How can you beat that pricing?
Hiring a lawyer
We get the feeling you probably aren’t digging the lawyer vibe based on your article click choice. However, we’re here to tell you some perks of hiring a lawyer.
For starters, they’re usually reliable, knowledgeable, and helpful. They can answer any questions you may have (no matter how silly you think they are), and they can give you some peace of mind in knowing you probably have a very solid prenup.
Their main downfall is the cost. But guess what? There’s a new way in town to use lawyers that isn’t as expensive. You can get a prenup with HelloPrenup first and then get a lawyer to review it and answer questions.
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: Nicole@Helloprenup.com
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