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. The safest, most reliable DIY prenup (in our humble opinion) is with HelloPrenup. But we won’t sit here and sell you on it; you can read why 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.
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.
- Signed voluntarily. Most, if not 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.
- 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. While nearly all states do not allow prenups to include child custody or support terms, there are narrow exceptions to this in some states.
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 that 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!
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.
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. 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. 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 the other did not. You will need to come to an agreement on that term in order to move forward. This gives you the autonomy to negotiate this on your own terms from the comfort of your own home! Then, all that’s left is to generate the prenup, sign, and notarize! The best part? It’s just $599 per couple.
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: [email protected]