People pay by check much less often now that so much banking is done online. But sometimes, a person or business might prefer using checks in certain circumstances. One reason checks might come in handy is that they can be "post-dated" in an effort to delay the date on which the money comes out of the check writer's account.
But is post-dating checks legal? Read on to find out about the legality of post-dating checks, and some of the consequences that could result.
Someone who doesn't have the money to cover a check on the day it's written might post-date the check so it isn't cashed until they have the funds. On the line specified for the date of the check, the person writes in a future date, with the expectation that the check won't be cashed until that date or after.
The answer is generally no, unless the person writing the check knows they won't have the funds to cover it and doesn't intend to honor it.
When someone writes a check intending not to cover it, they can be guilty of a theft crime. Some states might have a specific name for the crime such as theft by deception, passing bad checks, or negotiating a worthless instrument (checks are a type of "negotiable instrument"). Whether the crime is a misdemeanor or a felony often depends on how much money was involved.
Though the laws of each state vary, a person generally isn't guilty of such a crime unless they knew they wouldn't have the funds, and intended to defraud the party they wrote the check to. Someone intends to defraud if they never intended to actually pay the other party, but wrote the check anyway.
A person's intent to defraud is often proved with evidence that they knew the check bounced and did nothing about it. For example, imagine that Anna paid for a $10,000 designer purse with a post-dated check. On the indicated date, the seller went to cash the check and it bounced. Anna received notice from her bank that the check wasn't honored, and she didn't fix the problem by paying the seller. In some states, this is enough to presume that Anna intended to defraud. (See, for example, Ga. Code § 16-9-20 (2022); Me. Rev. Stat. 17-A § 708 (2022)).
But when someone does intend to honor a check and post-dates it to make sure they can cover it, they haven't committed any crime. That said, there might still be some things to think about when it comes to post-dating checks, as noted below.
Normally, a bank is allowed to charge someone's account for a post-dated check on the date the payee (the person the check is made out to) goes to cash it—even if it's before the date written on the check, and even if it causes an overdraft.
Although it's important to check your state's laws, there's normally an exception to the rule that allows banks to cash post-dated checks early. Usually, the bank can't legally cash the check if the person who wrote it:
If the bank cashes the check before the indicated date anyway, they might be responsible for any damages the person suffered—such as overdraft fees and financial consequences from other checks that bounced because the account was overdrawn. In some states, it's up to the payee not to cash the check early. In those states, the payee can be on the hook for any damages. (See, for example, Ga. Code §§ 11-4-401 11-4-403 (2022); W.Va. Code § 46A-6-110 (2022).)
If a post-dated check (or any check) bounces, it's important to take steps to remedy the problem right away, so that it's clear there was no intent to defraud.
If a check you've written has resulted in any criminal accusation, investigation, or charges, you should consult with a criminal defense attorney right away.
If your post-dated check was cashed early and you suffered a significant financial loss, a civil attorney might be able to help you recover damages.