What You Need to Know About Prenuptial Agreements
In the context of a prospective marriage, a prenuptial agreement is a contract between you and your future spouse that can define which of your assets or debts will be subject to payment of the debts and the division of wealth in the event of divorce, separation or death .
Whether a prenuptial agreement is appropriate for your situation is a decision of you and your future spouse, but we commonly see them used in respect of:
Your prenuptial agreement should carefully and clearly outline agreements you have reached with your future spouse regarding the disposition of your separate wealth, as well as the payment of your debts, in the event of a divorce, separation or death. We recommend that you avoid including "thou shalt not" clauses. The more cooperative and clear you are in drafting your agreement, the better it will be received by the Court.
What Makes a Prenuptial Agreement Valid Under the Law?
Although the legal requirements vary between each state, a prenup must generally meet the following criteria in order to be deemed valid and enforceable:
Written Contract – For a prenup to be enforceable, it must be in writing. Oral prenuptial agreements or those based on verbal representations are not legally binding.
Voluntary Written Consent – A valid prenup must be voluntarily agreed upon by both spouses. When one spouse is being physically or emotionally coerced into signing the agreement, the document is not enforceable. It is essential to refrain from putting either spouse under duress by threatening them with divorce or withholding marital support if they do not agree to the terms of the prenup.
Full Financial Disclosure – When entering into a prenuptial agreement, both spouses are legally required to fully disclose their finances and assets to the other. If one spouse is concealing finances, the agreement is rendered invalid. Importantly, full financial disclosure around assets is required, regardless of whether or not the spouse has relinquished their rights to those assets in the prenup.
The Importance of Notarization for a Prenuptial Agreement
Forty-nine states, including California, and D.C. require that spousal support provisions of a prenuptial agreement be in writing. So, unless the couple plans to live in a different state, there isn’t any benefit to notarizing their prenuptial agreement. Notarization doesn’t make a prenuptial agreement binding, and it doesn’t necessarily increase its chances of being held up in court.
However, notarization does make a prenuptial agreement more difficult for one of the spouses to deny ever having signed it. Another benefit is that notarization can help one spouse prove that the other spouse who is trying to contest the agreement signed it willingly. A notary public can help one spouse prove to the court that he or she signed the prenup voluntarily and that the terms of the agreement were not hidden. A notary public only has to have the couple initial their signatures, and then the notary keeps a record of the appointment, which can be taken into consideration if one of the spouses later decides to strongly contest the prenup.
Notarization doesn’t have any impact upon the division of property or spousal support in most states. A spouse might insist that the agreement was unfair or that he or she wasn’t treated right. However, all the spouse must show to invalidate a prenup is that he or she was forced to sign under duress, that the terms were hidden, and that the signing spouse (the spouse who prepared the agreement) had his or her own attorney present during drafting. The signing spouse must have the same opportunity to negotiate the terms and conditions of the agreement. Simply having a notary public at the time of signing doesn’t mean that the courts will automatically uphold the terms of the document. The prenup must also be signed willingly.
State-Specific Requirements for Notarizing a Prenup
Different states have different laws regarding notarization of prenuptial agreements. In fact, it is optional in many states. For example, in California, a prenuptial agreement is not required to be signed and/or notarized to be enforceable. Such is also true in Florida, New York, Pennsylvania, Texas and Washington. Utah is another example of a state where notarization is not mandatory. Other states such as Alaska, Hawaii, New Jersey, Ohio and Wisconsin allow notarization as an optional method of authenticity, just as in California and many other states. But there are states where notarization is required. For example, Kentucky, Montana, North Carolina, South Dakota and Tennessee require that prenuptial agreements be signed and notarized to be enforceable. Most of these states also have special provisions that apply before a prenuptial agreement is valid.
If you are considering a prenuptial agreement, you will want to not only make sure that your agreement is equitable, but that it meets the requirements for validity to ensure the greatest possibility that it will be enforceable.
Advantages of a Notarized Prenuptial Agreement
While the law does not require that a prenuptial agreement be notarized, it is a common practice nonetheless. There are several advantages to having a prenuptial agreement notarized once it is signed by both parties.
Increased Legitimacy
Having a prenuptial agreement notarized provides an added layer of legitimacy that a prenuptial agreement executed in California will typically require a finding of "substantial compliance" with the requirements of California Family Code 1612 and 1613 before it can be deemed enforceable. Substantial compliance means that even if the particulars of the document were inaccurate with respect to some requirement of the law at the time the document was signed, the parties still substantially complied with that law. Having a prenuptial agreement notarized adds credibility to the fact that the signatures are those of the parties and shows that the parties intended to be bound by the terms contained in the contract.
Less Future Litigation
If the parties did not fully understand the terms and conditions of the prenuptial agreement at the time it was signed , or a party simply refuses to comply with the agreement, litigation may ensue as a result. If a prenuptial agreement has not been notarized, a third party may not wish to be involved in resolving the dispute should the parties seek him or her out for additional information about the document. If a witness refused to appear for deposition or trial, a court may not allow the witness’ prior statement to be used as evidence. Avoiding future litigation is one of the main reasons people enter into a prenuptial agreement in the first place. A married couple does not want to have to engage in a protracted battle over the existence of the prenuptial agreement when the point of the agreement was to avoid that result.
Presumption of Voluntariness
A prenuptial agreement that has not been signed before a notary public will be scrutinized more heavily in determining whether it is presumptively enforceable (as opposed to falling under the presumption of undue influence). Having a prenuptial agreement notarized at the time it is signed strongly establishes the presumption that it was entered into voluntarily.
How to Notarize a Prenuptial Agreement
However, to ensure its validity, it is advisable that a prenuptial agreement be signed in the presence of a notary public and it is a relatively simple process. First, the couple should locate a notary public through a local search or by asking around for a recommendation from family and friends who are comfortable with the process.
When the couple has engaged the services of a skilled family law attorney to draft the agreement, that attorney may also be able to notary public services. Once a notary public is located, the couple must call ahead of time and make an appointment by providing the notary with the name of both parties, a copy of the prenuptial agreement, and any other documentation the notary may require.
An important part of this step is that both parties must have valid, government-issued identification in order to verify their identity. When both parties to the agreement arrive at the appointment, they must attest to the accuracy of their identities and the signature on the prenuptial agreement in front of the notary. After this step is completed, the notary will affix their stamp to the agreement to confirm that both parties signed the agreement in their presence.
Overall, while prenuptial agreements clearly do not need to be notarized to be valid, it is not uncommon for a couple to agree to this additional step as a matter of course. Any spouse proceeding with this process with their future spouse should get it done as soon as possible once both parties have agreed to the terms of the document to avoid unnecessary complications.
Common Prenup Notarization Mistakes to Avoid
Mistakes in notarizing a prenup can potentially render an otherwise (validly) executed prenuptial agreement unenforceable. Make sure you do not fall prey to the following common – although avoidable – mistakes:
1. Failing to pay attention to the requirements of your state law with regard to notarization. Every state has its own legal requirements for the notarization of a pre-nuptial agreement. Some states, for instance, require notarization by a notary public located in the state where the agreement is executed.
2. Confusion as to who must be notarized. It is easy to confuse the notarization requirements for a marital contract with that of other contracts. The signature of both parties must be notarized on a pre-nuptial agreement, whereas that is not required for all contracts.
3 . Having someone who is "interested" in the outcome of the prenuptial agreement notarize the signatures. Interested means you share business interests, own property together or are related to one another. You should not permit a person who is related to, shares a child with or with whom you had sex to witness and/or notarize the contract.
4. Having the same person notarize the signatures. While it is permissible in most states for the same individual to notarize the signatures on the prenuptial agreement, it is not a good idea. We have seen cases where the notary stamp was misplaced and unable to find and had to be reproduced. It is easy to copy an imprint. If one person is designated as the official notary for the prenuptial agreement, it will cost a lot of money to have the notary stamp re-created.