What are Prenups?

A prenuptial agreement is a contract between two people that they enter into prior to their marriage. The purpose of the prenuptial agreement is to establish and agree upon property and financial arrangements before marriage. Such an agreement may also contain provisions such as: a waiver of spousal support; which party is responsible for household bills or what happens in the event of infidelity.
A prenuptial agreement isn’t needed by every couple. If an individual has significant assets, or if it is a second or third marriage, a prenuptial agreement may prevent future litigation and may eliminate potential litigation expenses.
Absent a prenuptial agreement , the equitable distribution laws in your state will apply in the event of a divorce. At that time, certain factors will be weighed in determining equitable distribution of marital assets. A prenuptial agreement may allow you to bypass those factors by agreeing to another outcome.
A prenuptial agreement is not the same as a post-nuptial agreement. A post-nuptial agreement is entered into after the marriage; however, many of the same concerns would apply. If a prenuptial agreement is discussed and conditions are met pertaining to entering into such an agreement, a qualified family law attorney may recommend bridging such deadline by entering into a post-nuptial agreement.

Requirements for a Prenuptial Agreement

Generally speaking, there are a number of common legal requirements that most jurisdictions will recognize in order for a prenuptial agreement to be considered valid. Certain jurisdictions may have additional requirements as well.
In most jurisdictions, there is no requirement that a prenuptial agreement even be notarized at all. The requirement of notarization is mainly based upon the fact that most people do want an official signature on the document prior to it being finalized. However, it is very possible that a contract can be enforceable without a notarization. Once again, do not rely on this to be true for every jurisdiction.
An agreement must be voluntarily signed by both parties or else it will not be enforceable.
An agreement cannot be unconscionable. For example, if one party was completely cheated out of his or her assets, the agreement would be considered unconscionable.
A financial disclosure is usually required in prenuptial agreements. In most jurisdictions and situations, any sort of financial disclosure should be sufficient. Any type of financial disclosure is better than none.
We will describe certain jurisdictional requirements in a following section.

Potential Effect of Notarization on a Prenup

Depending on the state, the circumstances surrounding the agreement, and the preferences of the parties involved, notarization may be required for a prenup to be considered valid and enforceable. Notarization provides a helpful safeguard against fraud and other avenues that could render the contents of some agreements moot, such as the introduction of undue influence or duress. Should a person challenge the contents of an agreement at a later date, a notarized document can help to support the legitimacy of the document.
For example, in the case that one party engages in an extramarital affair or exhibits a change in behavior, then the other party might try to argue that the terms of the prenup should be disregarded on the grounds that it has no real legal merit.
The reality is that many states do have laws and regulations pertaining to the notarization of prenuptial agreements, which makes it highly important that you understand these requirements so that you can ensure the strength and validity of your future agreement. In many circumstances, the proper procedure will be to sign the prenup in front of a notary and obtain a notary seal as is done for mortgages and other legally binding documents. Notaries are found at banks and other key places throughout any community.
Being fully informed about whether or not notarization is necessary and whether or not you should include notarization in your prenup can ensure the high likelihood that it will be upheld in the event that it is challenged.

Does Your State Require Notarization for Prenups?

Unfortunately, there is no universal rule governing whether you must notarize a prenuptial agreement. Some states require notarized signatures, others have made notarization a condition precedent to enforceability, and some have given no indication whatsoever whether notarization is required. In fact, in some jurisdictions, it is unclear what the term "duly executed" used in the statute means. In those jurisdictions that do not require notarization, there is little clarity about what other requirements exist.
Some states that require notarization are California and Alabama. Alabama leaves the issue unsettled, providing that "a premarital agreement must be in writing and signed by both parties. It is enforceable without consideration to the extent that it is not unconscionable at the time of enforcement and was notarized by a notary public and signed before the marriage by the party to be charged." In other words, Alabama law requires an agreement to be in writing, signed by both parties, notarized, and is unenforceable only when the agreement is deemed unconscionable at the time of enforcement.
The issue of signing in front of a notary public is settled in Connecticut. General Statutes § 46b-36(f) states that "any premarital or marital agreement must be in writing and signed by the parties … with a proper acknowledgment by a notary public." Following suit are Delaware, Illinois, Maine, Massachusetts, Mississippi, North Carolina, Oklahoma, Pennsylvania, South Carolina, Texas, and West Virginia. These states clearly express support for requiring notarized signatures.
Specifically, Florida requires notarization. Florida Stat. § 61.079(1) provides that "A premarital agreement must be in writing and signed by both parties and notarized." Note also Alaska’s, Tennessee’s, and Utah’s clear requirement of notarization.
In states that do not require notarization, things get unsettled. Michigan’s statute provides that "a premarital agreement must be in writing, signed by both parties, and must be acknowledged by both parties in the same form and manner as acknowledgments for deeds for real property." Mich. Comp. Laws § 557.921(1) (emphasis added). But, what "same form and manner" means is unclear. It can be argued that since Michigan acknowledges conveyances of real property and not signatures on the documents, perhaps a document signed in the presence of a disinterested witness would suffice. Or, it could be argued that "form" means "notarized" and "manner" means "under oath in a formal judicial setting." Or, finally, "form" means "acknowledged" and "manner" means "notarized." In their June 20, 2018, report to the Legislature and the Judicial Council, the Michigan Law Revision Commission recommended that consideration be given to statutory revision to clarify the acknowledgment requirement for premarital agreements. It has yet to be seen whether the legislature will consider these recommendations.
Uncertainty continues in Minnesota, Louisiana, and Oklahoma. Louisiana does not expressly state whether a prenuptial agreement must be in writing or simply in substance. Yet the courts of that state have held agreements to be enforceable when the conditions of enforceability are not in the apparent terms of the contract, but the evidence of intention of the parties is clear and convincing. In Oklahoma, the Court recently stated that "section 52, so far as its language conflicts with the common law rule, is, as heretofore stated, a statutory legislative change of that rule as to contracts to marry, and there is no escape from its force by an application of the common law or any other law." So, for example, a Texas court ruled that to be valid, prenuptial agreements must be supported by consideration from both parties. In Oklahoma, that consideration need not be provided prior to the marriage or at the time the contract is executed, but can be made during the course of the marriage.
As in Oklahoma, some jurisdictions have endorsed the notion that the intent of the parties governs the enforceability of marital agreements. California upholds the common law rule, stating that "the parties may contract freely with respect to choice of law … and the chosen law governs the premarital agreement so long as the other law has no substantial relation." In Alaska, even though the statute declares that an agreement is enforceable without consideration, "unconscionability concerns are … best evaluated at the time of enforcement, rather than execution." And in Nebraska, a prenuptial agreement "is not enforceable if the party against whom enforcement is sought proves that, before execution of the agreement, that party was not provided by the other party the full and fair disclosure of … income and property to which that party neither had or was given adequate notice of," unless the party against whom enforcement is sought signed the agreement with knowledge of the breach or was represented by separate counsel.

Implications of Notarizing a Prenup

While signing a prenuptial agreement in the presence of a notary might seem like an unnecessary formality, it can actually have significant legal and personal implications, particularly in states like Florida, which require notarization. Failing to notarize a prenuptial agreement can result in a number of potential problems.
In many states, a notarized signature is a requirement for a valid prenuptial agreement. Failure to notarize the agreement can lead to the legal consequences of it no longer being considered enforceable until proper notarization is obtained. If a couple does not have their agreement notarized in a jurisdiction with such a requirement, it can delay the conclusion of a divorce, leading to a lengthy and costly litigation process.
On a more personal level , failing to notarize a prenuptial agreement can leave one spouse vulnerable to the consequences of a divorce. If the proper signing procedures aren’t followed, and there’s an issue with the enforceability of the prenuptial agreement, there is a very real chance the couple’s assets could be divided without the guidance of the agreement. This could also lead to issues regarding spousal support or alimony.
Even in states that do not require notarization, having a prenuptial agreement signed and executed in the presence of a notary provides additional proof of the validity of the contract. For this reason alone, it’s wise to strongly consider requesting a notarized signature on your prenuptial agreement. This is just one example of why parties should carefully follow the requirements for signing a prenuptial agreement in their state.

Best Practices for Ensuring your Prenup Has Force and Effect

A few best practices that can increase the likelihood that a prenuptial agreement will be valid and enforceable include: Having each party ensure that they receive independent legal advice from their own attorney; Entering into the agreement voluntarily and without being pressured or unduly influenced by the other party; Having the agreement signed well in advance of the wedding; Having each party to the agreement adequately disclose the other’s financial condition and having the party receiving the benefit of the prenuptial agreement provide a financial disclosure statement (see example); and, Getting the agreement notarized and entered into the public record prior to the wedding (or at least within a day or two of the wedding).
As a general rule, prenup agreements have become more and more mainstream, allowing couples to negotiate arrangements (i.e., "rescue" clauses for financially irresponsible individuals) that will govern what happens to their assets in the event of a future divorce. However, the procedural requirements for valid prenup agreements are not entirely clear-cut. And, with over 90% of all prenup agreements failing at least one of the enforceability requirements, mistakenly failing to have an agreement validly notarized may be a crucial requirement to overlook.

Consulting with the Experts

Given all the things that a prenuptial agreement brings up, such as financial disclosure, dividing property, spousal support, and dealing with debts, plus remembering that a prenuptial agreement can be revisited, it is highly recommended that if you and your future spouse choose to use a prenuptial agreement you bring in a lawyer to draft it. He or she will ensure that the legal requirements for a binding prenuptial agreement are met . Your lawyer will ask each party to make full financial disclosure and may even have to do a credit and criminal records check. Your lawyer should be able to warn you about what could be considered overreaching and therefore unenforceable, including forgoing the right to vote or agreeing to perform household chores (i.e., would the court really enforce an agreement that parties divide their chores 50-50?) Having a lawyer to navigate all these things is the most advisable step.