Content Overview
As couples embark on the journey of marriage, many choose to address financial matters proactively through a prenuptial agreement. This legal document serves as a blueprint for managing assets and liabilities, ensuring clarity and protection for both parties. A prenuptial agreement typically outlines how property will be divided in the event of a divorce, defines individual versus shared assets, and can even address spousal support. It can also stipulate how debts will be handled, which is particularly important in today’s world where financial obligations can be complex. By discussing these aspects before tying the knot, couples can foster open communication about finances, set expectations, and minimize potential conflicts down the line. Ultimately, a well-crafted prenuptial agreement not only protects individual interests but also promotes a healthy foundation for a lasting partnership.
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PRENUPTIAL AGREEMENT
THIS AGREEMENT made this ________ day of ________________, 20___, by and
between JANE SMITH, residing at ___________________________________________,
hereinafter referred to as “Jane” or “the Wife”, and JOHN DOE, residing at
_____________________________________________, hereinafter referred to as “John” or “the
Husband”.
W I T N E S S E T H:
A.Jane is presently ___ years of age, and has not previously been married and has no children. John is presently ___ years of age, has been married once previously and was divorced in ________. John has three children from his prior marriage, [identify children by name, date of birth and age].
B. The parties hereto have been residing together for a period ofyears,
and in consideration and recognition of their relationship and their mutual commitment, respect and love for one another, the parties contemplate marriage to one another in the near future, and both desire to fix and determine by antenuptial agreement the rights, claims and possible liabilities that will accrue to them by reason of the marriage.
C.The parties are cognizant that John has significant assets as reflected in Schedule “A” annexed hereto. It is the parties’ express intention and desire for this agreement to secure not only the
the event of a dissolution of their marital relationship, said agreement being a deliberate and calculated attempt by John and Jane to avoid a painful and costly litigation process.
D.The parties are over the age of eighteen and are fully competent to enter into this Agreement, each being of a sufficiently mature and sound mind to understand fully the contemplated promises contained in this Agreement.
E.Except as expressly provided in this agreement to the contrary, each party desires
that all property owned by him or her at the date of the parties̓ marriage together with any appreciation or increase thereon shall be free from any claim of the other that may arise by reason of their contemplated marriage, and that in the event of a termination event as hereinafter set forth, all such property shall be his or her respective separate property and shall not be subject to any equitable distribution or community property laws in the event that the parties establish a domicile or residence in a state that has adopted either of such systems.
F.The parties specifically intend and desire to enter into an agreement, under Section 236B, subdivision 3, of the New York Domestic Relations Law, that fully provides for the ownership and distribution of their marital property and for certain other rights and obligations arising from the marital relationship, which they further intend shall control and be determinative in all respects for the present and in the event of the dissolution of the marriage.
G.The parties further intend that this Agreement is made in consideration of and is conditioned upon the parties entering into a valid marriage with each other, and this Agreement shall become effective only upon the parties entering into a valid marriage with each other.
H.The parties further specifically intend and desire that this prenuptial agreement and the terms and provisions hereinafter set forth shall control and be binding upon them in the
event of divorce or a “Termination Event.” For purposes of this Agreement, a “Termination Event” shall be defined as set forth in Article 1 of this agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements hereinafter set forth, the parties do fully and voluntarily agree as follows:
ARTICLE I. |
TERMINATION EVENT |
As used in this Agreement, “Termination Event” shall refer to any one of the following
events:
1.The commencement by either party against the other party of an action or proceeding for divorce, separation, annulment or dissolution of the parties’ marriage;
2.The sending of a written notice by one party to the other party, by certified mail, return receipt requested, stating that the marriage between the parties is no longer viable and that the receipt of said letter shall constitute a Termination Event; or
3.The parties cease residing together and/or remain in a state of marital separation, for a period of sixty (60) days or more, and do not thereafter reconcile.
ARTICLE II. GENERAL PROPERTY WAIVERS
1.Except as otherwise specifically provided in this agreement, neither party shall by virtue of the marriage have or acquire any right, title or claim in or to the other party's real or personal property or estate upon the other party's death, or in the event of the dissolution of the impending marriage.
2.By the execution of the within Agreement, each party specifically waives any right that each now has or may ever have pursuant to the following provisions of New York’s Domestic Relations Law, and accepts the terms of the within Agreement in lieu thereof:
(a)Section 236 B(4) as to compulsory financial disclosure, except as may be required if the issue of child support is extant;
(b)Section 236 B(5) regarding disposition of marital property and declaration of
separate property;
(c)Section 236 B(6) as to maintenance;
(d)Section 236 B(8) regarding specific relief in matrimonial actions; and
(e)Section 237 with regard to counsel fees and expenses, except as provided in Article XV of this agreement.
ARTICLE III. |
ESTATE WAIVERS |
1.Except as otherwise provided in the within agreement, neither party shall by virtue of the marriage have or acquire any right, title or claim in or to the other party's real or personal property upon the other party's death. In the event of the death of either party, that party's estate shall descend to, or vest in his or her heirs at law, distributees, legatees or devisees and in such a manner as may be prescribed by his or her Last Will and Testament or Codicil thereto, or in default thereof, by the statutory law then in force, as though no marriage between the parties had ever taken place. The waivers set forth herein shall include, but shall not be limited to the following:
(a)RIGHT OF ELECTION: The right to elect to take against any present or future Last Will and Testament or Codicil of the other party pursuant to Estates, Powers and Trusts Law [of New York] (EPTL) §
(b)RIGHT TO TAKE: The right to take his or her intestate share of the other party's estate pursuant to Article 5 of the EPTL, and by law amendatory thereof, or supplemental or similar thereto.
(c)RIGHT TO ACT: The right, if any, to act as administrator or administratrix of the other party's estate pursuant to Article 5 of EPTL, and by law amendatory thereof, or supplemental or similar thereto.
(d)RIGHT TO CLAIM: The right to claim or assert a claim for the declaration of marital property and the distribution thereof pursuant to the Domestic Relations Law of the State of New York, and any law amendatory thereof, or supplemental or similar thereto; except as specifically set forth in the within agreement.
(e)RIGHT TO ASSERT: The right to assert a claim for maintenance and/or support pursuant to the Domestic Relations Law of the State of New York, and any law amendatory thereof, or supplemental or similar thereto; except as specifically set forth in the within agreement.
2.Nothing herein contained shall be deemed to constitute a waiver by either party of any bequest that the other party may choose to make to him or her by Will or Codicil dated subsequent to the execution of this agreement.
ARTICLE IV. |
SEPARATE PROPERTY WAIVERS |
1.All property owned individually by either of the parties at the time of their marriage, whether real, personal or mixed, wheresoever situated, and whether vested, contingent or inchoate, together with the appreciation, rents, issues, enhanced earning capacity, and profits thereof, whether passive or active, or due in part or in whole to the direct or indirect
contributions of the other party, and the proceeds of the sale thereof or mergers and acquisitions thereto, and the investments and reinvestments thereof and the appreciation, rents, issues, enhanced earning capacity, and profits of such investments and reinvestments along with any liabilities in connection thereto and together with all property, real, personal or mixed, which the parties may acquire in their individual names hereafter or during their marriage, from any source whatever, hereby is declared to be and shall remain the separate property, (as defined by Section 236, Part B, of the Domestic Relations Law) of the respective party now owning, or hereafter acquiring such property, free and clear of any rights, interests, claims or demands of the other. Each party hereby covenants and agrees to make no claim or demand on the separate property of the other, or on the heirs, executors, or administrators of the other in the event of his or her death, with respect to such separate property of the other, except as otherwise expressly provided herein.
2.Without in any way limiting the definition of separate property as set forth in paragraph numbered “1” of this Article, separate property shall include the following:
(i)John shall retain as his sole and separate property all of the assets set forth in Schedule “A” annexed hereto;
(ii)Jane shall retain as her sole and separate property all of the assets set forth in Schedule “B” annexed hereto;
(iii)all property derived from personal services, skills, efforts and employment, whether performed before or during the marriage or after the occurrence of a Termination Event, (e.g., including but not limited to wages, bonuses, royalties, commissions, deferred compensation plans, retirement plans, profit sharing plans, employer provided savings accounts, stock warrants,
stock options, incentive awards, and any other form of compensation or asset provided as a result of his or her employment); and
(iv)all articles and accessories of attire, jewelry, personal effects, and sports equipment acquired by way of purchase, gift (whether
3.Inheritance and
1. Any funds or property inherited by either party shall remain the sole and separate property of the party so inheriting such funds or property; and
2. Any
ARTICLE V. THE MARITAL RESIDENCE
1.The parties acknowledge that John is the owner of a house located at
______________________________________, New York. The parties acknowledge that John is the sole owner of this property and that Jane has made no contribution or investment therein. It is the intention of the parties to reside in this house after they are married.
2.During the course of the marriage while they reside in the said home, John shall be responsible for payment of the carrying charges (mortgage/home equity loan payment, if any, real estate taxes, homeowner’s insurance, utilities, etc.) for the residence.
3.It is agreed and understood between the parties that upon the occurrence of a Termination Event, John may give Jane ninety (90) days written notice of his desire for Jane to
vacate the said residence, and Jane agrees that she shall, within
4.Simultaneous with Jane’s vacatur from the marital residence pursuant to this Article, John shall pay to Jane, as a rental allowance for a residence, a
5.The provisions of this Article shall apply to any subsequent or successor residence of the parties that is owned in the name of John only.
6.It is specifically agreed that all items of furniture, furnishings, household goods and appliances, books, works of art and other miscellaneous items of personal property presently located at _____________________________________, New York, shall belong to John, with the exception of the personal effects belonging to Jane, which shall remain her separate property.
ARTICLE VI:
1.All property and accounts hereafter acquired in the name of each party shall remain the separate and distinct property of the party acquiring such property or accounts. However, all property and accounts acquired or maintained by the parties jointly and in the joint names of the parties shall be considered for purposes of this agreement the joint property of the parties. Such jointly held property shall be subject to the following:
a. Upon the occurrence of a Termination Event, the jointly held property shall be divided equally between the parties, as follows:
(i)the joint property shall be valued as near as practicable to the time of
the Termination Event;
(ii)if an item of joint property lends itself to a distribution in kind, to the extent possible, the property shall be distributed equally in kind;
(iii)if the item of joint property does not lend itself to distribution in kind, the parties shall attempt to resolve between themselves a method of distributing such property so that all such property is distributed equally. If, within ninety (90) days following the occurrence of a Termination Event, the parties are unable to agree upon a method of distributing such property, the property shall be sold and the proceeds shall be divided equally with each party receiving
b.Upon the death of a party during marriage, the surviving spouse shall be entitled to the full interest in the jointly held property, i.e., such jointly held property shall be deemed to be held as joint tenants with the right of survivorship.
2.
a.In the event of a Termination Event, and in the event that Jane and John shall
b.If it is the nature of the
c. If it is the nature of the
d. If it is the nature of the
e. If it is the nature of the
ARTICLE VII: WAIVER OF INTEREST IN QUALIFIED PLAN
1.Any individual retirement account, pension, retirement, death benefit, stock bonus, annuity or
Form Specifications
| Fact Name | Description |
|---|---|
| Definition | A prenuptial agreement, often called a prenup, is a contract entered into by two individuals before marriage, outlining the division of assets and responsibilities in the event of divorce or separation. |
| Legal Validity | For a prenup to be legally valid, it must be in writing and signed by both parties. Oral agreements are generally not enforceable. |
| State-Specific Laws | Prenuptial agreements are governed by state law, which can vary significantly. For example, California follows the Uniform Premarital Agreement Act. |
| Full Disclosure | Both parties must fully disclose their assets and liabilities. Failure to do so can lead to the agreement being invalidated. |
| Fairness Requirement | The agreement must be fair and reasonable. Courts may refuse to enforce a prenup that is deemed excessively one-sided. |
| Amendments | Couples can amend a prenup after marriage, but any changes must also be made in writing and signed by both parties. |
| Enforceability | Enforceability can depend on the circumstances under which the agreement was signed, including whether both parties had independent legal counsel. |
| Postnuptial Agreements | A postnuptial agreement serves a similar purpose but is created after the marriage has taken place. |
| Common Misconceptions | Many believe that prenups are only for the wealthy. In reality, they can benefit any couple by clarifying financial responsibilities. |
| Emotional Considerations | Discussing a prenup can be sensitive. Open communication about finances can strengthen a relationship and set a foundation for partnership. |
Prenuptial Agreement: Usage Guidelines
Filling out a Prenuptial Agreement form is an important step for couples planning to marry. It allows both parties to outline their financial rights and responsibilities before entering into marriage. This can help avoid misunderstandings and disputes in the future. Here’s how to complete the form effectively.
- Gather Personal Information: Collect full names, addresses, and dates of birth for both parties. This information will be essential for identifying each individual in the agreement.
- List Assets and Liabilities: Each party should compile a detailed list of their assets (like property, savings, and investments) and liabilities (such as debts or loans). This ensures transparency and clarity.
- Determine Ownership: Decide how you want to classify each asset and liability. Will they remain individual property or become joint? Clearly specify this in the form.
- Outline Financial Responsibilities: Discuss and document how finances will be managed during the marriage. This includes how expenses will be shared and how income will be handled.
- Include Provisions for Future Changes: Consider adding clauses that address how the agreement can be modified in the future, should circumstances change.
- Consult Legal Counsel: It’s wise for both parties to seek independent legal advice. This ensures that both understand their rights and the implications of the agreement.
- Sign and Date: Once the form is complete and both parties agree to its contents, sign and date the document. Ensure that witnesses are present if required by state law.
Completing these steps will help create a clear and fair Prenuptial Agreement. It’s a proactive way to address financial matters before marriage, fostering open communication and mutual understanding.
Your Questions, Answered
What is a prenuptial agreement?
A prenuptial agreement, often called a prenup, is a legal document created by two individuals before they get married. It outlines how assets and debts will be handled in the event of divorce or separation. The agreement can also address issues like spousal support and property division, providing clarity and protection for both parties.
Why should we consider a prenuptial agreement?
Many couples choose to create a prenuptial agreement to protect their individual assets and ensure that their financial interests are safeguarded. This can be especially important for those entering a marriage with significant assets, business interests, or children from previous relationships. A prenup can help prevent misunderstandings and disputes in the future.
What should be included in a prenuptial agreement?
A prenuptial agreement typically includes details about each party's assets and debts, how property will be divided in case of divorce, and whether spousal support will be awarded. Couples can also include provisions for how to handle future income, investments, and inheritance. It's important to tailor the agreement to fit both parties' needs.
Is a prenuptial agreement legally binding?
Yes, a prenuptial agreement can be legally binding if it meets certain requirements. Both parties must enter into the agreement voluntarily, with full disclosure of their financial situations. The agreement should also be fair and reasonable at the time of signing. It is advisable to have the agreement reviewed by a legal professional to ensure its enforceability.
Can a prenuptial agreement be changed after marriage?
Yes, a prenuptial agreement can be modified or revoked after marriage. Both parties must agree to the changes, and it is recommended to document any modifications in writing. This ensures that the updated terms are clear and legally enforceable.
What happens if we don’t have a prenuptial agreement?
If a couple does not have a prenuptial agreement, the division of assets and debts will be determined by state laws in the event of a divorce. This can lead to outcomes that may not align with either party’s wishes. Without a prenup, the court will make decisions based on various factors, which may not take personal circumstances into account.
How do we create a prenuptial agreement?
Creating a prenuptial agreement typically involves both parties discussing their financial situations and what they want the agreement to cover. It is advisable to consult with separate legal counsel to ensure that both parties’ interests are protected. Once the terms are agreed upon, the document should be drafted, reviewed, and signed by both parties.
When should we start discussing a prenuptial agreement?
It is best to start discussing a prenuptial agreement well before the wedding date. This allows both parties to consider their options and negotiate terms without the pressure of an impending marriage. Open and honest communication is key to ensuring that both individuals feel comfortable and understood during the process.
Common mistakes
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Failing to fully disclose assets and debts. Transparency is crucial. Each party should provide a complete list of their financial obligations and holdings.
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Not considering future income. Many overlook how future earnings or inheritances might impact the agreement. It’s essential to address potential changes in financial status.
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Using vague language. Ambiguities can lead to misunderstandings. Clear definitions of terms and conditions are necessary to avoid disputes later.
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Neglecting to update the agreement. Life circumstances change. Regular reviews and updates to the prenuptial agreement are important to reflect current realities.
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Not consulting with legal professionals. Some individuals attempt to draft the agreement without legal advice. This can lead to enforceability issues or missing critical components.
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Ignoring state laws. Each state has different regulations regarding prenuptial agreements. Understanding local laws is vital for the agreement’s validity.
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Rushing the process. Taking time to carefully consider each section of the agreement is crucial. Hasty decisions can lead to mistakes and regrets.
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Excluding important provisions. Some may forget to include clauses that address property division, spousal support, or debt responsibility. Each aspect should be carefully considered.
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Not having the agreement signed in front of a witness or notary. A signature alone may not suffice. Proper execution can affect the enforceability of the agreement.
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Overlooking the emotional aspect. Prenuptial agreements are not just legal documents; they can impact relationships. Open communication about intentions and concerns is essential.
Documents used along the form
A prenuptial agreement is a legal document that outlines the financial and personal arrangements between two individuals before they marry. In addition to this agreement, several other forms and documents may be relevant during the marriage planning process. The following is a list of commonly used documents that often accompany a prenuptial agreement.
- Financial Disclosure Statement: This document provides a detailed account of each party's financial situation, including assets, debts, income, and expenses. It ensures transparency and helps both parties make informed decisions.
- Postnuptial Agreement: Similar to a prenuptial agreement, a postnuptial agreement is created after marriage. It outlines how assets and debts will be managed during the marriage or in the event of a divorce.
- Separation Agreement: This document is used when a couple decides to separate. It outlines the terms of the separation, including division of property, child custody, and support obligations.
- Will: A will is a legal document that specifies how an individual's assets will be distributed upon their death. It is essential for ensuring that both parties' wishes are honored regarding their estate.
- Power of Attorney: This document grants one person the authority to make decisions on behalf of another in financial or medical matters. It is important for ensuring that a spouse can act on behalf of the other in times of need.
These documents can provide clarity and security for both individuals as they enter into marriage. Each serves a distinct purpose and can be vital in protecting the interests of both parties involved.
Similar forms
A Prenuptial Agreement, often referred to as a "prenup," serves as a contract between two individuals prior to marriage. While it is unique in its focus on marital assets and obligations, several other documents share similar characteristics in terms of purpose and structure. Here are seven documents that align closely with a Prenuptial Agreement:
- Postnuptial Agreement: Like a prenuptial agreement, a postnuptial agreement outlines the financial and property rights of each spouse. However, it is created after marriage, addressing changes in circumstances or financial situations.
- Separation Agreement: This document is used when a couple decides to live apart but not yet divorce. It details the division of assets, child custody, and support obligations, much like a prenup but in the context of separation.
- Marital Settlement Agreement: Often part of divorce proceedings, this agreement outlines how marital property and debts will be divided. It mirrors a prenup in its focus on asset distribution but is enacted post-marriage.
- Living Together Agreement: For couples who choose to cohabit without marrying, this agreement specifies the rights and responsibilities of each partner regarding property and finances, similar to a prenup's intent to protect assets.
- Power of Attorney: While primarily focused on decision-making authority, a power of attorney can include financial provisions. It shares the prenup's goal of defining responsibilities and protections, albeit in a different context.
- Will: A will dictates how a person's assets will be distributed upon their death. While it serves a different purpose than a prenup, both documents address the management and distribution of assets.
- Trust Agreement: This document establishes a trust to manage assets for beneficiaries. It parallels a prenup in its focus on asset protection and management, ensuring that assets are handled according to the grantor's wishes.
Understanding these documents can help individuals make informed decisions about their financial and legal rights, whether entering into a marriage or navigating other personal relationships. Each serves a unique purpose but shares the common goal of protecting interests and clarifying responsibilities.
Dos and Don'ts
When filling out a Prenuptial Agreement form, it’s essential to approach the process with care and consideration. Here are six important dos and don'ts to keep in mind:
- Do communicate openly with your partner about your intentions and expectations.
- Do consult with a qualified attorney who specializes in family law to ensure the agreement is legally sound.
- Do be honest about your financial situation, including assets and debts, to avoid future disputes.
- Do discuss and agree on the terms together, ensuring both parties feel comfortable with the content.
- Don't rush the process; take your time to understand each clause and its implications.
- Don't ignore state laws, as they can significantly impact the validity of your agreement.
By following these guidelines, you can create a prenuptial agreement that protects both parties and fosters a sense of security as you enter into marriage.
Misconceptions
Many people hold misconceptions about prenuptial agreements that can lead to misunderstandings about their purpose and benefits. Here is a list of common misconceptions along with clarifications.
- Prenuptial agreements are only for the wealthy. Many believe these agreements are only necessary for individuals with significant assets. In reality, anyone can benefit from a prenuptial agreement, regardless of their financial situation.
- Prenuptial agreements promote divorce. Some think that having a prenuptial agreement encourages separation. In truth, these agreements can provide clarity and peace of mind, which may strengthen a marriage.
- Prenuptial agreements are only for couples who do not trust each other. While trust is essential in any relationship, a prenuptial agreement is more about planning for the future than a lack of trust. It can help both parties understand their rights and responsibilities.
- Prenuptial agreements are not enforceable. Many people assume that prenuptial agreements have no legal standing. However, when properly drafted and executed, they are typically enforceable in court.
- Prenuptial agreements can cover anything. Some believe that a prenuptial agreement can include any provision, such as personal matters or lifestyle choices. However, courts generally do not enforce provisions that are deemed unreasonable or unrelated to financial matters.
- Prenuptial agreements are only for heterosexual couples. This misconception overlooks that prenuptial agreements are available to all couples, including same-sex couples, who wish to protect their interests.
- Prenuptial agreements are complicated and expensive. While some may think that creating a prenuptial agreement requires extensive legal work, many straightforward agreements can be prepared without excessive costs.
- Prenuptial agreements are permanent and cannot be changed. Some individuals believe that once a prenuptial agreement is signed, it cannot be modified. In reality, couples can amend their agreements if both parties consent to the changes.
- Prenuptial agreements are only for marriage. A common misconception is that these agreements are exclusively for married couples. In fact, similar agreements can be created for couples who are cohabitating and want to outline their financial responsibilities.
Understanding these misconceptions can help individuals make informed decisions about prenuptial agreements and their role in a marriage.
Key takeaways
When considering a Prenuptial Agreement, it's essential to understand the key aspects of filling out and using the form. Here are some important takeaways:
- Open Communication: Discuss the idea of a prenuptial agreement openly with your partner. Honesty and transparency are crucial for a healthy conversation.
- Timing Matters: Start the process early. Rushing can lead to misunderstandings or feelings of pressure, which can affect the agreement's validity.
- Full Disclosure: Both parties should provide a complete and honest disclosure of their financial situations. This includes assets, debts, and income.
- Legal Advice: Each partner should seek independent legal counsel. This ensures that both parties fully understand their rights and obligations.
- Customization is Key: Tailor the agreement to fit your specific needs. A one-size-fits-all approach may not address your unique circumstances.
- Review Regularly: Life changes, and so should your prenuptial agreement. Regularly review and update the document as needed.
- Signatures Matter: Ensure that both parties sign the agreement voluntarily and without any coercion. This helps to uphold the agreement in case of future disputes.
Understanding these key points can help you navigate the process of creating a prenuptial agreement with confidence and clarity.