You need to be a family law attorney to know the law well enough to write your own prenuptial agreement. However, in many states, courts may still enforce a homemade prenup, even without a lawyer. That doesn’t mean it will always stand up in court, though. Hence the reason it’s best to work with a professional or HelloPrenup. HelloPrenup was created by a divorce attorney and reviewed by other family law lawyers. HelloPrenup is your best path for creating a prenup without a lawyer. However, if you’re dead set on doing this yourself, there are some things you should know about making a prenup.
Do not start the prenup process the day before the wedding. There must be sufficient time before the big day to have a valid prenup in most states. For example, in California, there is something called the 7-day rule, which requires seven days from the final form of the agreement to the date of signing. This allows the parties to get an attorney or at least consider the terms on their own for a sufficient amount of time. Other states, such as New Hampshire, require a prenup to be done at least 30 days before the wedding day. It’s best to check with your state’s requirements on timing to ensure you comply. In general, HelloPrenup recommends beginning the prenup drafting process three to six months before the wedding.
Must be in writing
Now, this may seem obvious, but you’d be surprised at how many people create verbal prenups and expect them to stand in court. Putting it in writing helps avoid misunderstandings and unnecessary disputes over “he said, she said.”
Okay, you’ve got your pen and paper and are ready to write, but what do you write? The typical topics that go into a prenup are property division and alimony (a.k.a. spousal support or maintenance). Of course, there are other topics you can cover, like debt, confidentiality, sunsetting the agreement at a certain date, pet ownership, and more, which is where an attorney or HelloPrenup would step in to help you understand the full set of options.
Property division isn’t just “who gets the house?” The umbrella of property division also includes debt, salary, inheritances, gifts, businesses, bank accounts, and more. Property division laws differ by state, and the property you owned long before the marriage may (or may not) be deemed separate property. Do you think that house you bought ten years before you met your spouse is protected? Think again. That inheritance you have coming is definitely protected, right? Wrong! When you get married without a prenup, assets acquired during the marriage might be considered community/marital property and become subject to division upon divorce. How property is divided depends on your state. In some states, such as California, community property is split 50/50, even if the other spouse had nothing to do with the property. In other states, such as Massachusetts, the court will use their discretion and a list of state factors, such as how long the marriage lasted and the age of the parties, to determine who gets what, and it may not be a 50/50 split. It could be a 30/70 split or any other combination of splits.
If that’s not to your liking, then a prenup can help. A prenup can include the classification of separate and marital/community property, which will help avoid any unwanted 50/50 splits or 30/70 splits in a divorce.
As for alimony, this area gets tricky without a lawyer. For example, in California, if you alter alimony rights in your prenup, you are required to employ an attorney. If you do not employ legal counsel, your prenup may be thrown out, and the alimony clause will likely not be enforced. If you are still set on including an alimony clause, you can eliminate alimony altogether or limit it to a certain amount. Please keep in mind that the family court has the final say, and if it finds your alimony clause (or any clause for that matter) to be unfair, it will throw it out and may throw out the entire agreement with it, depending on the situation.
This one is extremely crucial to the prenup-making process. Both partners must disclose all of their assets and liabilities. This is done on a financial schedule which is a snapshot of all of your finances, including income, property, debt, inheritances, businesses, and more. The financial schedule should be attached at the end of your prenup.
Why is this necessary? Well, every state requires some form of financial disclosure in one way or another. In some states, you can waive it, and in others, you cannot. Regardless, to ensure you are complying with state requirements, It’s best that you include financial disclosure in your process.
Signatures from both parties
Another seemingly obvious requirement but an important one nonetheless. Your John Hancock! Put that ink on paper and sign the dang contract. Both of you. HelloPrenup recommends initialing every single page of the agreement. What’s a contract without a signature? It’s just paper.
Don’t be scared of this one. Nowadays, notaries can be done from the comfort of your living room. Websites like notarize.com can help you complete notarization via video chat. Some states have a hard requirement for notarization, and others don’t. Either way, it’s best to get your prenup notarized just in case as an added layer of protection.
Things to avoid
We’ve discussed all of the things you should do; now let’s talk about what you shouldn’t do in regard to your prenup.
Don’t include unlawful terms
What do we mean by unlawful terms? In this context, this means things that are not allowed under the law. There are the obvious things like, don’t add into your prenup that you get to shoot your spouse in the foot if they cheat on you. (Although that would be a ‘surefire’ way to avoid infidelity!). Then there are less obvious things like don’t include child support terms in your prenup, as that is typically not allowed to be contracted to in prenups.
The term unlawful can encompass a lot of things, and this is where an attorney or HelloPrenup would come in to help you cipher out what’s ok and what’s not. If you include unlawful terms, you put your entire contract at risk of being thrown out.
Don’t include unconscionable terms
When a contract has unconscionable provisions, a court may throw out the one provision or the entire agreement altogether. What is unconscionable differs from state to state, slightly. The overarching theme of unconscionability is extreme unfairness. Not just “one person gets more than the other” – that’s typically okay. Unconscionable is typically much stronger than that and more along the lines of leaving one person destitute or relying on public assistance while the other is sailing off to Croatia in their yacht. Unethical demands can also lead to unconscionable provisions, such as lifestyle clauses. In California, lifestyle clauses like “no-cheating” provisions can lead to an unconscionable agreement. Again, this is not in all states and what is unconscionable varies from state to state.
Don’t create your prenup under duress, coercion, undue influence, fraud, intimidation, etc.
Please avoid coercion, duress, undue influence, fraud, and the like, when executing your prenup. This means exactly what you think it means: don’t overly force your spouse to sign something. Both parties need to enter the agreement freely and voluntarily; otherwise, what’s the point? They don’t actually agree to the terms. So, if you force, influence, intimidate, deceive, or any other form of trickery and force, your prenup will likely be thrown out.
But what constitutes duress or coercion? Well, this is not a straightforward answer, as it depends on the state laws you’re looking at. Each state has its own case law precedent, which speaks to what should be considered duress or coercion (or any other form of force).
Let’s look at some case law examples for insight. In a Florida case from 2007, an ex-wife argued her prenup was signed under duress because when she signed the contract, she was seven months pregnant, and her pregnancy forced her to leave her job, and on top of that, the agreement was signed one hour before the wedding (although they had been negotiating it for several months prior). The result? No duress. The court said she had plenty of time to consider the prenup, as they had started negotiations months prior. For example, it would have been much worse if the ex-husband had presented the prenup to her for the first time one hour before the wedding, and in that case, it might have been duress, but not here. She even was represented by her own attorney.
Now, let’s look at what a court does consider to be duress. In a New Hampshire case from 2003, a court found that the ex-wife did not sign the contract voluntarily and the circumstances were coercive, and the ex-husband exerted wrongful pressure. She had no other option other than to sign the prenup.
This was based on several reasons:
- The prenup was presented to her just days before the wedding, for the first time.
- With only several days before the wedding, she did not have enough time to obtain her own attorney.
- The ex-husband’s attorney referred her to a recent law school graduate who had never negotiated a prenup before, and he was never able to verify the ex-husband’s financials (ahem: financial disclosure, anyone?!).
- If she refused to sign the prenup, she would have to cancel a 200-person wedding and lose her only means of support as a U.S. immigrant (the ex-husband had encouraged her to quit her job).
With all of the above things considered, the court agreed that this prenup was not enforceable.
As you can see, what is considered duress or coercion is very circumstantial and doesn’t necessarily have to be as egregious as holding a gun to someone’s head. It can be as simple as bringing a prenup to your fiance too close to the wedding day with other factors at play (read: timing).
Attorneys go to law school for three years and endure the dreaded bar exam for a reason. There are so many nuances to the law that it can hardly be explained in one blog article. This is why the founder of HelloPrenup created the prenup-making platform with the backing of real legal knowledge while allowing you, the client, to take control of the prenup process and make it your own. Learn more about how HelloPrenup works here. And if you do choose to forgo an attorney and HelloPrenup, godspeed to you, and we wish you the best of luck!
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]