The number one way to ensure a prenup is legally binding is to hire a professional. Whether that’s HelloPrenup, a local attorney, or a combination of both, you need professional help. Prenups are complex legal documents that require a ton of precision to be legally binding. If you miss one single step, you could wind up with your prenup in the trash. With that said, we’ll walk you through some of the ways you can ensure your prenup is legally binding (and if you pay to have a prenup, you hopefully won’t have to worry about any of these).
What does “legally binding” really mean?
A prenup is “legally binding” when a court agrees to uphold and enforce it. In other words, the court “holds your feet to the fire” in regards to what you wrote in the prenup. If you said, “I will do X,” then you need to do X. You are legally bound to do X. If you don’t, there will be repercussions. What those repercussions are will depend on what X is. For example, if your prenup says that Spouse A can live in the primary residence (and not Spouse B) during the pendency of the divorce, then Spouse B must leave. If your prenup has a confidentiality clause and you go around posting private information on social media, you may have to pay a monetary fine.
On the flip side, if your prenup is not legally binding for whatever reason (more on how this may happen in the next section), you will not be legally required to do what you said in the prenup. However, if you want to do what the prenup says on your own accord, by all means.
Some terms you may have heard are “uphold” or “enforce,” and these are other ways to essentially express a similar sentiment of “legally binding.” If a court upholds a prenup, it means the parties are legally bound to the terms. If a court enforces a prenup, the same thing goes.
Make sure you are compliant with state requirements
How do you ensure that your prenup is legally binding? Follow the state-required formalities and enforceability requirements. The first thing to understand is that every state has different requirements for an enforceable prenup. What is considered an enforceable prenup in Kentucky may not be considered enforceable in Minnesota. There are some formalities and enforceability requirements that are pretty standard throughout the United States, which we’ve outlined for you below. Keep in mind, though, that there are other state-specific requirements that may be unique to certain states. We will touch on that, but it’s not an exhaustive list. The best way to ensure your prenup is legally binding is to use HelloPrenup, an attorney, or a mix of both.
Without further ado, here are the most common formalities and enforceability requirements you’ll see across the nation:
Make sure it’s in writing
Put your prenup in writing. No verbal prenups will be enforced by a court. Verbal prenups create a huge mess and a lot of “he said, she said.” Putting it in writing helps avoid miscommunications and misunderstandings. Simple enough, right? And you don’t need to worry about this one with HelloPrenup or an attorney, as the prenup will obviously be put into writing with either!
Make sure it’s signed
Another obvious one, and something you generally don’t have to worry about with HelloPrenup or an attorney because both will prompt you to sign. However, it’s good to understand that prenups need signatures. Without them, it’s just a piece of paper. A court needs to see that both parties actually agreed to it, and one person didn’t just write this up without a meeting of the minds. HelloPrenup also recommends initialing every page for a further layer of protection.
Make sure it’s notarized
If you don’t know what notarization is, don’t worry, it’s super simple. It’s basically a way for the courts to verify that your prenup was actually signed by you (and not someone pretending to be you) and that there was no funny business going on, like fraud or some other type of force.
How it works is a notary public will watch you sign the document and put their stamp of approval on the document. Nowadays, this can be done from the comfort of your own home with virtual notaries like Notarize.com and NotaryLive. You can also visit your local bank or post office to get it done in person.
You should have all of your original prenup copies notarized, and we recommend you have three originals (one for you, one for your spouse, and one for you jointly). Keep in mind that not every state requires notarization, but it’s so simple to do, and it can help in court to show authenticity if it’s ever challenged, so we recommend everyone gets their prenups notarized, regardless of their state.
Make sure it’s witnessed properly (if your state requires this)
Can I get a witness?! Yes, you can, and you must get a witness if you live in a state like Minnesota, which requires it! There are a handful of states that may require a witness outright or only in certain situations. For example, Florida only requires two witnesses if certain things are waived in the prenup. If you live in a state which requires witnesses at all, your best bet is to get a witness regardless. HelloPrenup or a local attorney can help make sure you stay compliant with your state’s witness requirements, so try not to worry about that!
How does it work? Well, depends on what the state requires, but generally, a state will require one or two witnesses to watch you sign and notarize the prenup. The witnesses are another layer of protection against identity theft and any other fraudulent behavior that may come with signing a contract.
Make sure both people are signing it voluntarily
Whether someone signed a prenup voluntarily is less of a formality, like putting it in writing and signing it, and more of a circumstantial question. What was the context of the prenup and the signing of the prenup? Was someone forced by coercion or duress to sign this? A court will look at the surrounding circumstances of the prenup to make this call. If a prenup is deemed involuntarily signed, then it is not legally binding. An extreme example of involuntarily signing a prenup would be handcuffing your partner to a table and putting a gun to their head, and forcing them to sign. (Don’t worry. This isn’t a commonplace scenario). A more likely example of an involuntarily signed prenup would be springing the prenup on your spouse the day before, leaving them no other option but to sign it. Otherwise, they’d lose out on their immigration status if they don’t get married and also maybe have to cancel their huge wedding the next day. Something like that might get a prenup thrown out for duress (i.e., involuntarily forced to sign).
Make sure the terms included are lawful
Now, let’s turn to the contents of a prenup. Sometimes the contents of a prenup can get your prenup thrown out (and it won’t be legally binding). Sometimes a court will only strike the clauses that are unlawful. It really depends on the state and the situation. An example of an unlawful term would be including child support and/or child custody terms in a prenup in a state that does not allow child matters to go into prenups (which is nearly all states). So, if you included in your prenup a child support and child custody clause in a state that doesn’t allow this, a court will definitely strike the clause and possibly throw out the entire agreement. The result? Your prenup is not legally binding, and you wasted a whole lot of time and money on it. Another outrageous example would be if you added a clause that said, “my spouse shall shoot herself in the foot if she cheats on me.” No court in the country will be legally binding her to that clause, that’s for sure! A court might say, wow, these people are crazy, and if this clause is this crazy, maybe the whole contract was created on a crazy foundation, and we need to throw this whole thing out. Okay, maybe they wouldn’t say that exactly, but you catch our drift.
Make sure the terms included are reasonably fair
While we’re on the topic of prenup contents, it’s important to mention fairness. Prenups cannot be egregiously unfair. They do not need to be 50/50 by any means, but if one spouse is leaving the marriage on food stamps while the other is sailing off in their yacht, a court won’t stand for it. It’s hard to pinpoint exactly what will be considered unfair, as it is a very case-by-case thing. Not to mention, every state has its own threshold for what they consider to be fair. Many courts use the term “unconscionable” when referring to fairness in a prenup. If a prenup is deemed unconscionable, it will not be legally binding on either party.
Other unique state requirements
There are some state requirements that are completely unique to that state, and no other state adopts them. For example, California has something known as the 7-day rule, which says you must have seven calendar days between the final version of the contract and the signing of it. If this rule isn’t followed, it will not be a legally binding contract, according to California laws. There may be other unique requirements for other states, but HelloPrenup or a lawyer can help make sure you don’t miss a beat!
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]