A prenuptial agreement is a document that is usually made before or at the very beginning of a marriage, with the purpose of producing effects in the division of assets. The prenuptial agreement is a very common practice and it mostly comes into effect at the time of legal separation or divorce proceedings. Its purpose is to have the spouses/future spouses agree on a certain division of assets, prior to the potentially conflictual situation that may arise at the time when a marriage falls apart.
Benefits of a notarized pre-nup a the start of your marriage
Making the prenuptial agreement at the very beginning of a union is most recommended since it ensures that the parties reach an agreement and it helps make future separation proceedings easier, at a time when an agreement on financial aspects would otherwise be very difficult to imagine. That is not to say, however, that having a prenuptial agreement completely eliminates any conflicts regarding the division of assets. Though disagreements often arise, it still helps in making this transition more straightforward.
One of the issues that come up quite often regarding the correct and valid conclusion of a prenuptial agreement, is whether a premarital agreement needs to be notarized by the spouses in order for such agreement to become legally binding and to produce effects. In other words, is the notarization of a prenuptial agreement mandatory for its validity?
The short answer is no. The premarital agreement is not a notarized document, therefore there is no per se obligation to notarize it. However, this does not mean that the agreement is not notarized in certain situations. For instance, whenever the prenuptial agreement, in dividing assets between the spouses, also refers to a real estate property transfer, having the document notarized is highly recommended. In addition, given the scope of the notarization process, notarizing a premarital agreement also helps in making it more difficult to challenge its validity later on. The notary public witnesses the direct signing of a document, verifies the identity of the signers and tries to notice any red flags suggesting that the parties are not acting under free will or in their right capacity. If a document is concluded before a notary public, it becomes increasingly harder for one of the signers to claim at a later time that he/she wasn’t present during the signing, that he/she was forced or incapable of consent. Therefore, while not mandatory, notarization is encouraged. If spouses notarize the prenup, it will most likely be binding in court and produce the intended effects.
Although it is unlikely to successfully occur, the contesting of a signature leads to longer divorce proceedings and causes delays in the personal and financial status of the spouses. Adding an element of conflict to an already difficult and contentious process, causes even more tension and strain in a relationship that is already troubled.
What can happen in the absence of a notarized pre-nup
Not having the prenuptial agreement notarized could open the door for one of the spouses to try and ignore or circumvent the aspects agreed upon initially regarding financial rights, expectations or demands. Contesting the identity of a signer is one of the ways to ensure that the agreement is rendered useless. The strategies could be endless. One of the spouses could try to obtain more assets in the divorce than he/she is entitled to, in contrast, try to deny the other spouse rights already agreed upon. This is when the divorce becomes a battle of wills and lawyers.
In conclusion, based on the numerous advantages that the notarization of a prenuptial agreement, we recommend this added layer of protection. In regards to the obligations of the notary public in performing his/her notary duties, we emphasize the need to carefully handle and protect the notary journal. It may be used, at some point in the future, as proof that the notarization has taken place, years after the signing of the prenuptial agreement, when time comes to enforce its provisions.