Writing your own prenup can potentially save you time and money, but there’s more to consider when doing so.
Yes, you can write a prenup yourself in California, but you risk having it rejected in court if it’s not airtight and legally sound. Though you’ve made a great decision to get a prenup, DIY prenup options have their pitfalls and drawbacks, so let’s take a closer look.
Purpose of a Prenup
A prenuptial agreement, or “prenup,” is a legal written agreement you and your partner enter into before getting married. It provides guidelines during marriage and details what happens to your assets and debts if you divorce.
Keep in mind that everyone’s situation is different, so there is no one-size-fits-all prenup. If you’re thinking about copying and pasting jargon from contracts you found online, don’t do it! You’ll miss out on various ways to tailor your prenup and empower a successful marriage.
BEFORE getting married, what conversations about MONEY should you have with your partner?
Use this guide to discuss budgets, assets, debts, goals, joints bank accounts and more.
Get the guideCrafting Your Own Prenup
According to California’s Uniform Premarital Agreement Act (UPAA), you can create your own prenup as long as it’s in writing and you follow all the rules of a valid prenup.
Sure, you can scribble a few sentences onto a napkin and call it a prenup, but it won’t do you any good. In other words, don’t draft a prenup on your own just to say you have one or simply avoid opting into California’s default marriage agreement.
Instead, take this opportunity to talk through money, life, kids, and other goals. Then, create a prenup that supports you and your partner during marriage and protects both of you in case of an unexpected end.
So if you’re headstrong on writing your own prenup, here are a few tips and gotchas to be mindful of along the way.
Hand-Written Prenups
Before you do anything, talk to your partner. Prenups aren’t one-sided contracts; in fact, they may not hold up in court if they are. This means that you must work on this agreement together and pay special attention to your finances.
You’ll need to disclose all of your assets and debts, as well as any income or financial expectations you have for the future.
Here are just a few financial and other important questions to talk through:
- How will community property be created during your marriage?
- Are there assets that you want to keep as separate property?
- Will you open a joint bank account?
- How do you contribute to the joint account, and what bills get paid from it?
- How will you divide up assets in the event of a divorce? How about debts?
- Who will pay spousal support, and how much?
- Who gets the pets in a divorce?
- Do you want to explicitly prohibit each other from posting harmful photos or videos on social media?
Aside from child custody or support, you can cover a lot of ground with a prenup. Once you have a clear picture of each other’s financial situation, you can start drafting your prenup.
If you need guidance on what questions to ask, use this comprehensive prenup planner to walk you through and leave no stone unturned.
Besides capturing the important topics, your prenuptial agreement must be enforceable in California courts. Your prenup can be voided if you don’t follow the proper timing, ensure it’s mutually beneficial, and abide by certain procedures under the UPAA.
Online Prenups
Another way to create your own prenup is by using an online service or web application. They’re touted as a quick and affordable way to draft your own prenup. Basically, you choose your state, answer an online questionnaire, and receive an electronic prenuptial agreement.
Online prenups may be legal in California, but they’re only viable if you’ve done the deep work with your partner and include enforceable terms and provisions that it will hold up in court. I highly advise couples to have a family law attorney review the online prenup before signing it. This way, you know it’s legally sound and, if necessary, personalized to your specific goals.
Using Your Current Lawyer
Some couples tap on their current business or estate planning attorney to help write a prenup. Though you’re technically not writing a prenup yourself, you may be tempted to save time and money by not having to hunt for a reputable family law attorney.
Proceed with caution here. Even if your current attorney is great in their field of work, they may not understand the nuances of family or prenup law. You may save time and money upfront, but it may cost you down the line if the prenup falls flat in court.
Next Steps
It’s understandable why DIY prenup options may be attractive. They can be cheaper and even faster than working with a family law attorney.
But whether you ink your own agreement, get one online, or have your current (non-family law) attorney draft one for you, these options, when done incorrectly, may not be enforceable in court or, more importantly, don’t cater to your specific needs.
Don’t get tunnel vision, and don’t rush into a prenup. Even if you go the DIY route, get an experienced family law attorney to review the agreement so you have peace of mind out the gates, during the marriage, and in case things don’t work out with your partner.
