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Notaries And Prenuptial Agreements

Prenuptial agreements can play an important role in division of property during divorce proceedings, and any question about the validity of a signature on a prenuptial agreement can throw the document into doubt. The Legal Professionals Section spoke withPeter M. Walzer, attorney and certified family law specialist with Walzer & Melcher LLP in Woodland Hills, California, to discuss issues that may arise when notarizing prenuptial agreements.

Do prenuptial agreements require notarization?
I don’t believe there’s any requirement that a prenuptial agreement be notarized, except possibly if the agreement involves a transfer of real estate. The Uniform Premarital Agreement Act used in 28 states does not require notarization for prenuptial agreements. However, it is still prudent to have a prenuptial agreement notarized, because you don’t want to have a question come up about the identity of a signer at a later date. Maybe only one in 100 prenuptial agreements involve a dispute if a person actually signed the document, but those are the ones that are litigated.

Can proper notarization make an important difference in court if a prenup is challenged?
Yes, of course, because the Notary verifies that the signer is who he or she claims they are. If the notarization on a prenuptial agreement is done properly, including a signature and thumbprint in the Notary’s journal, that is something that will be binding in court.

What are some issues you’ve seen with notarizing these agreements?
It’s not uncommon for a Notary with an out-of-date commission to notarize a prenuptial agreement, and in my practice I’ve also observed Notaries who lost their journals and couldn’t produce the records of notarizing the document. Those situations would make an acknowledgment on a prenuptial agreement meaningless in those cases. A prenuptial agreement is effective as long as a couple is married. If the couple has been married 30 or 40 years, it may not be possible to locate the original Notary who notarized the document. I would say a Notary who notarizes a premarital agreement has a special responsibility to keep good track of their journal records.

What impartiality issues can arise when notarizing these agreements?
I think it’s common that a Notary in a law office also serves in a role as a secretary or paralegal; I assume if protocols are followed carefully and ID is always asked for regardless of who the signer is, that’s acceptable. But I don’t think it’s a good idea for an attorney who’s a Notary to notarize the signature of a client or opposing party on a prenuptial agreement. Under cross-examination, this might be considered suspect. People who may have signed a prenuptial agreement sometimes want to get out of it and if so, the Notary is an obvious target to challenge.

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