As you may know, a prenuptial agreement is an contract between two people who are about to get married. It generally covers topics like property division and alimony in the event of a divorce. However, there are certain requirements that every prenup must have to be valid, and your state laws dictate those requirements. Every state has its own set of requirements, but there are a few that are generally applicable to nearly all states. Keep reading to find out what those are.
Prenuptial agreements must be in writing. That means no verbal agreements with your partner. Putting your contract in writing eliminates the issue of “he said, she said,” and any misunderstandings between the parties. Easy peasy–get that ink on paper!
Yes, you need to sign the contract; otherwise, your prenup is just a piece of paper with words on it! Signatures bind the parties to the agreement. Without them, how would you know if the spouses agreed to it? HelloPrenup recommends that both fiancés initial every page and the final signatures at the end.
Sometimes, notarization is required for a valid prenup, but only in some states. Notarization is a way to deter fraudulent signatures on contracts and ensures that a signed document can be trusted. Nowadays, you can get your prenup notarized from the comfort of your own home with companies like Notarize.com and NotaryLive. Using video chat, a notary public will verify that you are who you say you are and that you are executing the document of your own free will. If you aren’t sure if your state requires notarization, it’s best to get it just in case!
Signed voluntarily (not under duress or coercion)
This seems obvious, but it may not always be as straightforward as you might think. Prenuptial agreements must be signed voluntarily, meaning not under some type of force, such as duress, coercion, fraud, mistake, undue influence, and any of the like. If a prenup is not signed voluntarily, it is not enforceable and thus a void contract.
For example, when people think of coercion or duress, they may go straight to thinking of some outlandish scenario, like handcuffing someone to a table and forcing them to sign. And, yes, this would fall under “not signing voluntarily,” and the contract would likely not be considered valid and enforceable. However, there are much less outlandish scenarios where a court may find a party did not sign voluntarily.
What is an example of a less outlandish scenario? Well, some state courts may deem a prenup invalid based on duress if it was forced too close to the wedding day. A real case from New Hampshire deemed a prenup invalid based on duress because the prenup was introduced to the wife too close to the wedding ceremony, which would have forced her to cancel a 200-person ceremony if she declined the prenup. The husband also had been working on the prenup for two years prior with an attorney, and the wife only had a few days before the wedding and no time to get an adequate attorney and negotiate. She ended up signing it, but the court found it invalid based on duress! In re Est. of Hollett, 834 A.2d 348 (N.H. 2003)
Financial disclosure is the sharing of finances with your soon-to-be spouse, which is done via a financial schedule, and attached to the back of your prenup. You must disclose the value of things like student loans, bank accounts, inheritances, real estate, retirement funds, and more. You should not be skimping on this, as doing so can lead you down a dark path to potentially getting your prenup thrown out. Do you think you can get by without sharing that you have a cool $20,000 credit card debt from all of that online shopping? Think again! Not to mention, hiding stuff from your future spouse isn’t the best way to get your marriage started.
Most states require some form of financial disclosure, and there are some that allow waiver of it. What do all states have in common? A judge will look at whether the parties were aware of all their spouse’s assets on some level or another. For those states that allow waiver of financial disclosure, the court may look at the circumstances as a whole and ask questions like: Did the partner who waived their rights have knowledge those assets existed? Did they have reason to know what their spouse’s business was worth?
No unconscionable or unlawful terms
A prenup should not include unlawful or unconscionable terms if you want it to hold up in court. Unlawful terms mean things that are against the law. For example, you should not be including things like “if they ever stop loving me, I get to shoot them in the foot.” Okay, that’s excessive, but you get the picture.
Unconscionable terms are a little more nuanced. Each state has its own definition of unconscionable, but the general consensus is that it means something extraordinarily unfair. Now, don’t misconstrue that to mean that prenups must be 50/50. That’s not the case at all. It simply cannot be so one-sided that it “shocks the conscience,” as many courts like to say.
If you include unlawful or unconscionable terms in your prenup, you are putting your entire contract at risk. The court could slash one unlawful or unconscionable term, but they may also throw out the entire contract altogether. This is why it’s crucial to understand the law and what is required for your state, as you don’t want to see your prenup in the trash.
Most states do not have a hard and fast rule of when is the “right time” to sign a prenup, but most agree that signing a prenup on the wedding day is a big no-no. It may not be enough by itself to get the prenup thrown out, but it definitely creates an argument toward that outcome. Courts usually want to see that both parties have enough time to consider the terms thoroughly and possibly even get an attorney if they choose (or if it’s required by the state).
Most states do not require legal counsel in order to create a valid prenup, but there are some exceptions. For example, in California, you do not need an attorney to create a valid prenup, but if you choose to alter spousal support in that prenup, then yes, you do now need a lawyer. In other words: no lawyer if you’re not touching spousal support, and yes lawyer if you are touching spousal support.
Let’s look at another state: New York. There, you do not need a lawyer to create a valid prenup. However, if the validity of the prenup is ever challenged in court, having had a lawyer will help you support the argument that your prenup is valid.
Miscellaneous state requirements
Again, we want to remind you that every state has its own requirements, so make sure you brush up on what that looks like. Let’s talk about a unique requirement that California has called the “7-day rule.” This rule requires that prenups have at least seven days from the time the contract is finalized to the date the contract is signed. Other states do not have this requirement. In California, if you do not follow the 7-day rule requirement, you likely do not have 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]