So, you have yourself a prenup, and you’re wondering if it’s valid and it’s not, how to correct it. Generally, the best way to resolve this issue would be to hire an attorney and get specialized legal advice. HelloPrenup can also help you to initially create a legally valid prenup, which you may later take to an attorney’s office and ask questions or seek out representation. Either way, if you find yourself with an invalid prenuptial agreement, you basically do not have a prenup. An invalid prenup = no prenup. We’ve done the heavy lifting for you and written out a large majority of the ways a prenup can be invalidated. Remember, prenups are dictated by state law, so every state has a different set of requirements on what creates a valid prenup. The following article covers generalities and is not state-specific!
What is a prenup?
A prenup, i.e., a prenuptial agreement, is a legal document between a couple that is about to wed. It can cover topics like property division, alimony (i.e., spousal support), and debt allocation should your marriage come to an end. You hope to never have to use your prenup, but if you do, you already have some important issues like property division determined in advance. It can help streamline the divorce process and save you money on attorney’s fees. Not only that, but it can also help align you and your partner on many topics before entering the marriage. How? Well, the prenup process forces you two to discuss dense topics like finances, death, divorce, children, family, and more. You two must come to an agreement on financial and life goals, your expectations of each other, and your roles. This level of communication will give you a newfound understanding of your partner.
What is an invalid prenup?
Now let’s talk about invalid prenups. An invalid prenup is a contract that is typically not enforceable due to some reason. It may be that it was executed improperly (no signatures, no notary, things like this), or it may be that it is unfair, illegal, or improper in some way (think: coercion, unreasonably one-sidedness, etc.). Keep reading to understand several different ways a prenup can be declared invalid.
Let’s say your honey promised you (they swore up and down) that they would never ask for alimony. “You have my word on my Grandma’s grave,” they said (and you KNOW how much they love their Grandma). You took this to heart and figured you could skip out on the prenup. Well, you figured it wrong on this one. This would typically be considered an oral agreement, and it is not a valid prenuptial agreement. Prenups must be in writing to be valid, so if you have an oral agreement, get that ink on paper STAT.
Lack of signatures
We’ve said it once, and we’ll say it again: a prenup without signatures is just paper. Both parties must sign it. HelloPrenup even recommends initialing each page for extra protection. A prenup without signatures is very likely an invalid prenup and is unlikely to be enforced by a court. This one is fairly straightforward: if you don’t have signatures on your prenup… get them!
Lack of notarization
Some states require notarization of your prenup in order to be valid. Some states do not. If you live in a state that requires notarization of your prenup, and you don’t do it, you will likely have yourself an invalid prenup. Even if you live in a state that doesn’t require notarization, it doesn’t hurt to get it done, just in case.
Notarization is a way to avoid fraud and ensure that the parties signing the contract are who they say they are. The process of notarization requires you to sign the prenup in front of a notary public (a person registered to notarize something) and verify your identity. Nowadays, this can be done all from the comfort of your living room. With companies like Notarize.com and NotaryLive, you are able to utilize the latest technology (i.e., video chat) to get the job done.
No independent counsel
“Do I need a lawyer to create a valid prenup” is a question we get a lot. Having legal advice or legal representation is not required in every state. That is to say, in some states, you do not need a lawyer to create a valid prenup. On the flip side, in some states, you may need a lawyer to create a valid prenup. Let’s look at an example. In California, generally, you do not need a lawyer to make a valid prenup; however, if you alter spousal support in the prenup in any way, then you will need a lawyer. So, let’s say you get a prenup that completely eliminates spousal support for each spouse, and neither of you gets a lawyer. That prenup is most likely going to be declared invalid.
In some states, having a lawyer only supports a claim that you have a valid prenup. This means that looking at the totality of the circumstances, having a lawyer is one factor among others that points to a valid agreement.
Not enough time before the wedding
Picture this: you are getting ready in the bridal suite, champagne is flowing, all of your family flies in to see you get married, and the energy is high. Right before putting on the gown, you get a knock at the door. It’s your soon-to-be spouse holding a stack of papers. It’s a prenup. He hands it to you and tells you to sign it…you hesitate at first but reluctantly sign. Crazy right?! Well, you’d be surprised how often this happens, and it is a big NO-NO. Signing the prenup too close to the wedding day can be a fast-track way to invalidate your prenup.
In most states, it’s probably not enough (by itself) to get the prenup thrown out, but it certainly supports a claim that the prenup is invalid. In other states, like New Hampshire, there are more strict requirements. A New Hampshire prenup is required to be presented 30 days before the wedding, or it will typically be considered invalid.
Another example is the California 7-day rule, which requires at least seven calendar days between the time the prenup in its final form is presented and when it’s signed by the parties. So, if you’re in California and thinking of getting a prenup with just six days ’til wedding day, you won’t be able to create a valid prenup. In other words, violating California’s 7-day rule will land you with an invalid prenup.
All in all, the best way to go about avoiding this pitfall is to get the prenup-making process started three to six months before the wedding day. This should give you plenty of time to find a lawyer (if you need one), discuss the terms, negotiate, and finalize everything. If you are someone who missed your window of opportunity for a prenup, then you still have the option of getting a postnup.
Not signed voluntarily
There’s really no “fixing” this one if you’ve already done it incorrectly; you must do it right from the start. A prenup must be signed voluntarily, which means not under some type of force like duress, coercion, undue influence, fraud, etc. If a prenup is not signed voluntarily, it will not be valid. That goes for pretty much all contracts.
For example, there’s no holding a gun to someone’s head and saying, “sign this now.” That would be coercion at its worst. Now, that is an extreme example and not likely to be the scenario you should be worried about (at least, we hope!). We should note that what is considered duress or coercion varies from state to state. Let’s look at an example that’s more likely to be the case.
A New Hampshire court declared a prenup invalid due to duress. The court said the prenup was invalid based on duress for several reasons: (1) The prenup was presented just several days prior to the wedding, leaving the wife no time to get her own lawyer; (2) the husband’s attorney referred her to a law school grad who had never done a prenup before; (3) the wife’s very inexperienced attorney never verified the husband’s financials (i.e., no adequate financial disclosure); (4) Had she declined to sign the prenup, she would’ve had to cancel a huge wedding and lose her only means of support as an immigrant because the husband had urged her to leave her job. Based on all of these factors combined, the court said, yes, the wife was unnecessarily “forced” through duress to sign this contract, and it should not be enforced (i.e., it’s invalid).
Some level of full financial disclosure is generally required in every state. Some states may allow waiver of financial disclosure with stipulations, like signing a written waiver of such.
Financial disclosure is the part of the prenup process when you share the economic value of your finances, such as bank accounts, debt, real estate, retirement funds, etc., on a financial schedule that is eventually attached to the back of your prenup.
If you haven’t disclosed all of your finances, do it ASAP, and don’t skimp! There’s no such thing as a prenup LITE where you can just divulge some of your finances. Financial disclosure, in many states, must be full and fair. Meaning no “accidentally” leaving out the student loans or that hefty bank account. Even though it may stress you out knowing your boo has this information, that is part of the process. Financial disclosure is required because each partner needs to get a full understanding of the rights they are giving up. If you only show your debt but not your million-dollar bank account, your future spouse may be less inclined to waive rights to that bank account. The good news? After you two fully disclose your finances, you will have a deeper understanding of each other and hopefully be aligned on your goals and expectations of each other.
Let’s look at a real-life case from Tennessee evaluating financial disclosure. Spoiler alert: the prenup was invalid based partially on the husband’s lack of financial disclosure. The case went as follows. The Tennessee couple signed the prenup, each had their own attorney, and they exchanged their separate property values (or at least they thought they did!). After a few months of wedded bliss, the wife was looking through their property taxes when she noticed her honey owned a condo with his ex! What?! She decided to keep this dirty little secret to herself because any mention of his ex was a surefire way to get into a lover’s quarrel. Eventually, they got a divorce, and during the proceedings, the wife asked the court to throw out the prenup because she didn’t have full financial disclosure (no condo with the ex was included!). The court agreed with the wife and declared that the husband’s lack of disclosure of the condo showed a lack of good faith in entering the prenup. Dun, dun, dun. Moral of the story? Full. Fair. Financial. Disclosure. No. Skimping.
What is “unconscionable” varies slightly from state to state. Each state will define unconscionable in its own way and determine the threshold of what is considered unconscionable. The overarching theme of this term across all states is something that is extremely unfair. If your prenup is deemed unconscionable, it will likely be thrown out. You may also have just one provision deemed unconscionable, and the court may simply strike that provision and carry on with the rest of the prenup. Either way, it’s not something you want to risk.
We believe this concept is best explained via an example. Let’s look at a case from an Indiana court in 1991. The court declared that a significant change in financial circumstances might render a prenup unconscionable. In the case, the husband and wife executed a prenup which stated, in the event of a divorce, the husband shall pay the wife $500k in alimony (i.e., spousal support), plus $500/week while the divorce was ongoing. At the time they signed the prenup, the husband was worth nearly $31,000,000.
Time went by, and they got a divorce. The wife, of course, asked the court to enforce the prenup for her $500k payment. However, the husband had lost his money and had to declare bankruptcy, making him worth about $300k. So, do you think it’s fair (i.e., “conscionable”) to make this man pay his ex-wife $500k when he doesn’t even have $500k? Yeah, neither did the court. The court said this is unconscionable, i.e., totally unfair, and a prenup shouldn’t leave one person in a position where they can’t even financially support themselves.
Don’t include illegal provisions; just don’t do it! We’re talking about things that are against the law. This could be something as outlandish as requiring someone to commit a crime or something that violates state law, such as trying to enforce child custody in a prenup. If you do include unlawful provisions, the court may either throw it out altogether or strike the particular illegal provision. But why risk it?
Not following state requirements
Every state has its own set of prenup requirements. Many of them are similar, such as requiring prenups to be in writing, signed by both parties, signed voluntarily, etc. However, some states have unique requirements that other states may not. For example, California’s 7-day rule. If you do not follow California’s 7-day rule, you will likely have yourself a very invalid prenup. The 7-day rule requires the parties to leave seven calendar days between the day the prenup is presented to the other party in its final form and the day which the parties sign the prenup. This is unique to California, and it’s why you should be fully aware of your state’s requirements!
Another example is in New York; you must both sign the agreement, notarize it, and acknowledge it in the same form required to file a deed. That is to say, notarized signatures are not enough, they must also be acknowledged in a particular way, or it will not be a valid prenup.
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]