This question largely depends on what state you are living in. Some states require both notarization and witness(es) and others require neither. Some states may require just notarization but no witnesses. Other states may just STRONGLY recommend one or the other. It’s quite variable! Every state has its own laws surrounding the validity of prenuptial agreements. The most important thing is to make sure you are in compliance with your state’s law.
What is a prenup?
A prenup is a contract between two fiancés that sets out their financial obligations during the marriage and if the marriage should come to an end. A prenup typically covers financial topics such as property division, alimony (i.e., spousal support), and debt allocation, although it can also cover non-financial topics like infidelity clauses (depending on your state) and pet “custody” clauses.
Prenup requirements
Prenup requirements are dictated by state law. “Prenup requirements” are the state’s rules for what is required to create a legally valid prenup. What is considered a legally valid prenup in California may not be legally valid in Louisiana. Here are some of the typical requirements some states utilize:
- Prenup must be in writing
- Prenup must be signed by both parties
- Prenup must be notarized
- Prenup must be witnessed by at least 1 or 2 witnesses
- Prenup must be entered into voluntarily, and not under duress or coercion
- Prenup must not include unconscionable terms
- Prenup must not include unlawful terms
- Prenup must include some level of financial disclosure
Again, not all states require all of these, and some may have requirements that are not listed above. These requirements are necessary to create a valid prenup. Invalid prenup = most liekly no prenup at all.
Notarization
Notarization is the act of signing a document in front of a notary public (an official appointed by the Secretary of State). Nowadays, you can get documents notarized online via video chat through companies like NotaryLive and Notarize.com, which makes the whole process a lot faster and simpler. You can always still go in person to get your document notarized, which can usually be done at banks and post offices, among other places.
After going through the process of signing the contract in front of the notary public, the notary will also sign the document, apply their official seal, and provide their notary details. This special seal on a document further shows that a document has been verified and is authentic.
The typical reason some states require prenups to be notarized is to avoid any type of fraud when executing a prenup. When you get a document notarized in front of a notary public, you are confirming that (1) you are who you say you are; and (2) you are entering the contract voluntarily.
If you are in a state that requires a prenup to be notarized, and you don’t do it, you typically have yourself an invalid prenup which could mean that it will be thrown out by a court. The result? You will have to go through the divorce process according to the default state divorce law.
Witnesses
When we say “witnesses,” we mean having a person witness you and your partner executing the prenup and sign it themselves. Witnesses to a contract may be required for any type of contract, not just prenups. But remember, not all states require a witness to create a valid prenup. Others highly recommend that you have witnesses, but it’s not a hard requirement. If you are creating a prenup in a state that requires a witness and you don’t do it, you could have yourself an invalid and unenforceable prenup.
Depending on your state law, a prenup could require one or two witnesses to verify that you signed the document. Can the witnesses be anyone? It depends. It could be random people like friends or family, or some states require witnesses to be notary publics or state officials.
Why would a state require witnesses to a prenup? Well, it helps confirm (just like notarization) that the prenup was created voluntarily and by the correct person. You can’t hog-tie your spouse and force them to sign in front of a witness, nor can you forge your spouse’s signature in front of a witness. The witness needs to confirm that both parties signed of their free will. For example, in Minnesota, Louisiana, and Georgia (among other states), the prenup must be signed by two witnesses. On the other hand, states like California and Massachusetts do not require multiple witnesses.
Real-life case law
Let’s look at a real-life Georgia case where a prenup was declared unenforceable based on the lack of witnesses. A couple in Georgia decided to write up their prenup without an attorney. Since they weren’t privy to the state requirements, they didn’t include witnesses to the prenup. In fact, the prenup was so poorly written and executed (missing requirements and legally incomprehensible) it was declared invalid. Yikes! Remember, an invalid prenup usually means you have no prenup at all.
Another case stemming from Minnesota declared a prenup invalid and unenforceable based on a lack of the correct number of witnesses. In Minnesota, a prenup must be “in writing, executed in the presence of two witnesses and acknowledged by the parties, executing the same before any officer or person authorized to administer an oath under the laws of this state.” Minn.Stat. § 519.11. In plain English, that means there must be two witnesses, and it must be notarized. In the case at hand, the couple executed the contract with one witness, who was also the notary public. This was not enough. Womp, womp, womp. What is the moral of the story? Know your state requirements and do them properly!
Let’s look at a happier ending where a prenup was NOT invalidated. In New York, an ex-husband looking to set aside his prenuptial agreement argued that the acknowledgment written by the notary was defective, thus making the prenup invalid. Wait, what?! Why? The ex-husband argued because the notary used the past tense term “has signed,” insinuating that the notary didn’t witness the signing in real-time. (Cue eye-roll, am I right?!)
The acknowledgment of the notary was as follows:
I, __________, a Notary Public in and for said County, in the State aforesaid, do hereby certify that [NAME OF PARTY], personally known to me to be one of the persons whose names are subscribed to the foregoing Premarital Agreement, appeared before me this day in person and acknowledged that he has signed, sealed and delivered the foregoing Premarital Agreement as his free and voluntary act, for the uses and purposes therein set forth. Given under my hand and notarial seal this [DATE].
The court said, heck no, buddy! You’re not getting away from your obligations under your prenup based on this little technicality. Notarization = valid!
How HelloPrenup can help
HelloPrenup can help you with the witness requirement if you’re in a state that requires witnesses. Wow, that’s amazing; how does HelloPrenup work, you ask? First, you sign up and create an account with us. Second, you invite your partner to join. Third, you both (separately) go through questionnaires that help tailor the prenup to your needs. Fourth, you negotiate any discrepancies in you and your partner’s questionnaire answers. Fifth, you download the prenup, sign it, and notarize it (with witnesses, if that’s required in your state!). Not to worry, HelloPrenup will help keep you up to speed on what is required in your state and if witnesses are necessary.
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Nicole Sheehey is HelloPrenup’s Head of Content. She is an Illinois-licensed attorney. You can read more about us here. Questions? Reach out to Nicole directly at [email protected].
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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