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Prenuptial Agreement

Prenuptial Agreement Template

Use our Prenuptial Agreement to detail how your wealth and belongings will be treated if your marriage ends.

A prenuptial agreement, sometimes known as a "prenup," is a contract couples engage in before getting married to outline each spouse's financial and property rights in the event of a divorce or death during the marriage.

While rich people are more likely to employ the agreement, anyone can set forth terms that will benefit themselves and their relationship with their spouse.

This website explains prenuptial agreements (prenups), how they function, and how to complete them on your own.

Table of Contents

What Exactly Is a Prenuptial Agreement?

A prenuptial agreement, often referred to as a "prenup," is a legally binding contract entered into by two individuals before they get married or enter into a civil partnership. This agreement outlines the rights, responsibilities, and financial arrangements of each party in the event of a divorce, separation, or death.

Key aspects typically covered in a prenuptial agreement include:

  1. Asset Division: Prenups can specify how assets acquired before and during the marriage will be divided in case of divorce. This may include property, savings, investments, and business interests.
  1. Debts: The agreement can address how any existing debts or future debts acquired during the marriage will be handled.
  1. Spousal Support: Prenuptial agreements often outline whether one spouse will pay alimony (spousal support) to the other in the event of a divorce and, if so, the amount and duration.
  1. Inheritance: They can determine how inheritance rights will be affected by the marriage, ensuring that specific assets or inheritances remain separate.
  1. Children: While child custody and child support are typically not enforceable in prenuptial agreements, they may address issues related to the upbringing and education of any future children.
  1. Personal Property: Some prenups specify the treatment of personal items, such as jewelry or collectibles, in the event of divorce.

Prenuptial agreements are designed to protect the financial interests of both parties, provide clarity in case of divorce, and often prevent disputes over property and finances. However, they cannot include provisions on child custody, child support, or any terms that violate the law or public policy. Both parties should seek independent legal counsel when creating a prenuptial agreement to ensure it is fair, legally sound, and meets their needs.

How Does a Prenup Work?

A prenuptial agreement (prenup) is a legally binding contract that outlines how a couple's financial and property matters will be handled in the event of a divorce or separation. Here's how it typically works:

  1. Consultation with Attorneys: Each party should consult with their own attorney to ensure their interests are represented. It's crucial to have independent legal advice to avoid any claims of coercion or unfairness.
  1. Full Financial Disclosure: Both parties are required to provide complete and accurate financial information, including assets, debts, income, and expenses. This transparency is necessary to create a fair and enforceable agreement.
  1. Negotiation: The couple, often with the assistance of their attorneys, negotiates the terms of the prenup. They can decide how to handle property division, spousal support, and other financial matters.
  1. Drafting the Agreement: Based on the negotiations, the attorneys draft the prenuptial agreement, including all the agreed-upon terms and conditions. It must comply with state laws and not violate public policy.
  1. Review and Signing: Both parties should review the agreement carefully. There should be ample time for consideration; rushing into signing is not advisable. Once both parties are satisfied, they sign the prenup.
  1. Notarization and Witnesses: Depending on the jurisdiction, the prenup may need to be notarized and witnessed to make it legally valid.
  1. Filing: Some states require the prenuptial agreement to be filed with the county clerk's office before the marriage, while others don't. Couples should check their state's laws on this matter.
  1. Enforcement: In the event of divorce or separation, the prenuptial agreement serves as a legally binding contract that guides property division, spousal support, and other financial matters. It can help avoid lengthy and costly legal battles.
  1. Court Review: Courts may review the prenuptial agreement to ensure it was entered into voluntarily, both parties had legal representation or waived it knowingly, and that the terms are not unconscionable. If the agreement meets these criteria, it is likely to be upheld.
  1. Final Decree: The prenuptial agreement's terms are incorporated into the final divorce decree, and both parties are legally obligated to follow them.

It's important to note that prenuptial agreements cannot cover matters related to child custody, visitation, or child support, as these are determined based on the child's best interests at the time of divorce or separation. Prenups primarily address financial and property issues.

Common Prenuptial Agreement Clauses

Prenuptial agreements, also known as prenups, can include a variety of clauses depending on the specific needs and concerns of the couple. While the terms of a prenup are highly customizable, here are some common clauses that are often included:

  1. Asset Division: This is the most common clause and outlines how the couple's assets and debts will be divided in the event of a divorce. It may specify which assets remain separate property and which become marital property.
  1. Alimony (Spousal Support): This clause can determine whether alimony will be paid, how much, and for how long. It can also include conditions for when alimony would be paid or terminated.
  1. Property Ownership: Couples can use this clause to specify the ownership of property acquired during the marriage, such as a family home or vacation property.
  1. Debt Responsibility: This clause addresses how the couple's debts, including credit card debt, loans, and mortgages, will be divided upon divorce.
  1. Inheritance and Gifts: It can establish that inheritances or gifts received by one spouse during the marriage will remain their separate property and not be subject to division.
  1. Business Interests: For couples with business interests, this clause can address how the business will be handled in case of divorce, including ownership, valuation, and management.
  1. Retirement Accounts: It can specify how retirement accounts, pensions, and other investments will be divided or protected.
  1. Estate Planning: This clause may include provisions for estate planning, such as creating wills or trusts that align with the prenuptial agreement.
  1. Custody and Child-Related Issues: While child custody and child support cannot be determined in a prenup, couples can include provisions on how they will handle child-related expenses and decisions during the marriage.
  1. Infidelity or Behavior Clauses: Some prenups include clauses that specify financial consequences in the event of certain behaviors, such as infidelity.
  1. Savings and Financial Goals: Couples can set savings and financial goals in the prenup, ensuring both spouses are on the same page regarding financial matters.
  1. Social Media and Privacy: In the age of social media, some couples include clauses about what can and cannot be shared on social platforms, especially if it could negatively impact the marriage.

It's crucial to consult with an attorney experienced in family law when drafting a prenuptial agreement. Laws governing prenups can vary by state, so it's important to ensure that the agreement complies with local regulations and is legally enforceable. Additionally, both parties should have independent legal representation to protect their interests and avoid claims of coercion or duress.

Writing a Prenuptial Agreement

Writing a prenuptial agreement involves careful consideration and transparency between both parties. Here are seven steps to help you create a prenup:

  1. Open and Honest Discussion: Begin by having an open and honest conversation with your future spouse about the need for a prenuptial agreement. Discuss your financial situations, expectations, and reasons for wanting the agreement.
  1. Consult with Attorneys: Each party should hire their own experienced family law attorney. Attorneys will ensure that the agreement complies with state laws, provide legal advice, and protect each party's interests.
  1. Full Financial Disclosure: Both parties must provide complete and accurate financial disclosures. This includes assets, liabilities, income, and expenses. Transparency is crucial for the prenup's validity.
  1. Identify Goals and Terms: Together with your attorneys, identify the goals and terms of the prenuptial agreement. Discuss what assets and debts will remain separate, how property acquired during the marriage will be handled, and any other relevant financial matters.
  1. Draft the Agreement: The attorneys will draft the prenuptial agreement based on your discussions and goals. The document should be clear, concise, and unambiguous, ensuring that both parties fully understand its terms.
  1. Review and Revise: Carefully review the draft with your attorney. If any changes are needed, discuss and negotiate with your future spouse. Make revisions as necessary to reach a mutually agreeable version.
  1. Signing and Notarization: Once both parties are satisfied with the terms, schedule a signing appointment. It's essential to sign the prenuptial agreement well in advance of the wedding to avoid any claims of coercion. The agreement should be signed in the presence of notaries and, in some cases, witnesses, depending on state requirements.

Remember that prenuptial agreements are legally binding contracts, and the laws surrounding them can vary by state. It's crucial to consult with qualified attorneys who specialize in family law to ensure your prenup meets all legal requirements and adequately protects both parties' interests.

What Should Be Included in a Prenuptial Agreement?

A comprehensive prenuptial agreement should address various aspects of a couple's financial and legal affairs. Here is a breakdown of what should typically be included:

1. Financial Disclosure:

  • A full and transparent disclosure of each party's assets, debts, income, and financial obligations. This is essential to ensure that both parties have a complete understanding of their partner's financial situation.

2. Asset Division:

  • Specify how assets (property, real estate, investments, etc.) acquired during the marriage will be divided in the event of divorce or separation. You can choose to keep certain assets separate or specify a division percentage.

3. Debt Allocation:

  • Determine how debts, such as mortgages, loans, and credit card debts, acquired during the marriage will be divided between spouses if the marriage ends.

4. Spousal Support (Alimony):

  • Outline whether and how much spousal support will be paid in the event of divorce. Include terms related to the duration and amount of support.

5. Property Rights:

  • Specify how property owned by each spouse before the marriage (separate property) will be treated during the marriage and in the event of divorce.

6. Inheritance and Gifts:

  • Clarify how inheritance, gifts, or bequests received by either spouse during the marriage will be treated. Determine whether they will be considered separate property or shared.

7. Child Custody and Support:

  • While prenuptial agreements typically don't address child custody and child support, it's crucial to state this explicitly in the agreement. Courts often prioritize the best interests of the child when determining custody and support, which cannot be predetermined in a prenup.

8. Legal Representation:

  • Acknowledge that both parties have had the opportunity to seek legal advice and have been advised about the implications of the agreement. This helps protect the agreement's validity.

9. Sunset Clause:

  • Consider including a provision that specifies when the prenuptial agreement will expire or undergo a review. This can be based on the number of years married or other criteria.

10. Governing Law:

  • State the jurisdiction and laws that will govern the agreement and any disputes related to it.

11. Execution and Notarization:

  • Ensure that both parties sign the agreement in the presence of witnesses and a notary public to make it legally binding.

12. Severability Clause:

  • Include a clause stating that if any part of the agreement is found to be unenforceable, the remaining provisions will still be valid.

13. Communication and Dispute Resolution:

  • Address how disagreements related to the agreement will be resolved, such as through negotiation, mediation, or arbitration.

14. Amendments:

  • Specify how amendments or modifications to the agreement will be made and require them to be in writing and signed by both parties.

15. Confidentiality:

  • Stress the importance of keeping the terms of the agreement confidential, as it can be a sensitive matter.

16. Review by Legal Counsel:

  • Encourage both parties to review the agreement independently with their attorneys to ensure that their rights and interests are protected.

Additional steps to include while writing a Prenuptial Agreement

In addition to the core steps mentioned earlier, here are some additional considerations and steps to ensure a thorough and well-crafted prenuptial agreement:

Sunset Clause: You may want to include a sunset clause specifying when the prenup will expire or undergo a review. This can be based on the number of years married, milestones, or other criteria.

Lifestyle Clauses: Some couples include lifestyle clauses that address issues like weight gain, social media usage, or other personal matters. These clauses can be sensitive, so approach them with caution.

Governing Law and Jurisdiction: Specify the state or country's laws that will govern the agreement and the jurisdiction where disputes will be resolved.

Review Period: Include provisions for periodic reviews or updates to the agreement, especially if significant life events occur, such as the birth of children or a change in financial circumstances.

Waivers and Acknowledgments: Include clear language that both parties have had ample time to review the agreement, have sought independent legal counsel, and fully understand its implications.

Inventory of Assets: Attach a comprehensive schedule or inventory of assets, making it easier to track and manage property during the marriage.

Specificity: Be as specific as possible when detailing assets and their division. Ambiguity can lead to disputes down the road.

Alternative Dispute Resolution: Consider including a provision for alternative dispute resolution (ADR) methods like mediation or arbitration to resolve conflicts before going to court.

Integration Clause: Include a clause stating that the written agreement represents the entire understanding between the parties, superseding any prior oral or written agreements.

Confidentiality: Address the issue of confidentiality, especially regarding financial disclosures and the terms of the prenup.

Financial Planning: Collaborate with financial professionals, such as accountants or financial planners, to ensure that the financial aspects of the agreement are well-considered and optimized.

Postnuptial Agreement: In some cases, couples may choose to convert their prenup into a postnuptial agreement after marriage. Discuss this possibility with your attorney.

Independent Review: Encourage both parties to review the agreement independently with their attorneys, emphasizing that they should not feel pressured or rushed.

Record Keeping: Maintain copies of all drafts, correspondence, and the final signed agreement for future reference.

Customizing your prenuptial agreement to address your unique needs and concerns is crucial. Remember that it should be fair, reasonable, and legally sound to ensure its enforceability if needed in the future. Consulting with experienced family law attorneys is highly recommended throughout the process.

FAQs

What is a prenuptial agreement (prenup)?

A prenuptial agreement is a legally binding contract between two people before they marry or enter into a civil partnership. It outlines how assets, debts, and other financial matters will be handled in the event of divorce, separation, or death.

Who should consider a prenuptial agreement?

Anyone with assets, debts, or specific concerns about property division or spousal support can consider a prenup. It's particularly relevant for individuals with significant assets, business owners, those with children from previous relationships, or anyone wanting to protect their financial interests.

Can a prenuptial agreement address child custody and child support?

No, prenuptial agreements generally cannot address child custody and child support arrangements. These matters are typically determined by the court based on the child's best interests at the time of divorce or separation.

Are prenuptial agreements enforceable?

Prenuptial agreements are generally enforceable, but their validity depends on various factors, including full financial disclosure, legal representation for both parties, and fairness in the terms. Courts can invalidate agreements that were signed under duress, lacked transparency, or were unconscionable.

Can a prenup be modified after marriage?

Yes, a postnuptial agreement can be created after marriage to modify the terms of a prenup or address new issues that have arisen during the marriage. These agreements must follow similar legal requirements as prenuptial agreements.

Do both parties need separate attorneys for a prenup?

While it's not a strict requirement, it is highly advisable for both parties to have their own independent attorneys. This helps ensure that both individuals fully understand the agreement's implications and that their rights are protected.

Can a prenuptial agreement encourage divorce?

A prenuptial agreement does not encourage divorce, but it does provide clarity and fairness in case a divorce occurs. It can actually promote open communication and financial transparency between spouses, which can be healthy for a marriage.

Prenuptial Agreement Sample

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