A Prenuptial Agreement form, commonly known as a prenup, is a legal document that couples complete before marriage, outlining the ownership of their respective assets should the marriage end. It serves as a protective measure, safeguarding individual assets and clarifying financial responsibilities during the marriage. For those considering drafting one, click the button below to start filling out your form.
Entering into marriage combines two lives in many more ways than one, intertwining the emotional, the personal, and significantly, the financial. An essential tool for many couples aiming to define the landscape of their financial relationship both during and, if necessary, at the end of their marriage is the Prenuptial Agreement form. This legal document is not a bet against marital success but rather a pragmatic approach to addressing realities that many couples face. It stipulates how assets and liabilities will be handled, both during the marriage and in the event of a separation, divorce, or death. Far from being reserved for the wealthy, this agreement offers clarity, security, and peace of mind for couples from all walks of life. By setting expectations and financial arrangements upfront, it helps avoid potential conflicts in the future, providing a solid foundation upon which to build a partnership. The nuances of these agreements can vary widely depending on the couple's situation, state laws, and what they choose to include, making it a document tailored to the unique circumstances and needs of each couple.
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 pre-marital and separate property rights of John, but also to preserve, shield and protect the beneficial interest which John’s children have in their father’s estate. Inasmuch as John has been previously divorced, both John and Jane desire to enter into a contractual agreement which is intended to govern their financial affairs and obligations to one another in
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
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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:
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(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) § 5-1.1-A, and by law amendatory thereof, or supplemental or similar thereto.
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(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
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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,
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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 inter-spousal or from a third party) or otherwise, primarily for the use of that party.
3.Inheritance and Inter-Spousal Gifts: In addition, the parties make the following specific declarations relative to their respective separate property interests:
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 inter-spousal gifts, i.e., gifts from Jane to John or gifts from John to Jane, during the parties marriage, shall constitute the sole and separate property of the recipient of the gift(s).
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
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vacate the said residence, and Jane agrees that she shall, within forty-five (45) days of receipt of such written notice, remove herself from the said home.
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 one-time lump sum payment of _______________ ($___________) Dollars.
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: AFTER-ACQUIRED PROPERTY
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;
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(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 one-half of the net proceeds (defined as the total selling price less the expense of sale) and each party bearing one-half of any tax consequences
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.Co-Mingled Separate/Non-Marital Property:
a.In the event of a Termination Event, and in the event that Jane and John shall co-mingle any of their Separate Property, including any income or profits derived therefrom, their Separate Property shall not as a result become Marital Property, unless Jane and John express in writing their intent that it become Marital Property. If the Separate Property of Jane and/or John may be co-mingled with the Separate Property of the other or with Marital Property, then it shall be known as “co-mingled property”.
b.If it is the nature of the co-mingled property that it lends itself to division and distribution in kind and it is possible to determine Jane’s and John’s contributions therein, then
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co-mingled property shall be divided and distributed to Jane and John in kind, the appreciation and interest to be divided pro rata in accordance with the parties’ contributions.
c. If it is the nature of the co-mingled property that it lends itself to distribution in kind, but it is not possible to determine Jane’s and John’s contribution, then, unless Jane and John can agree in writing on some other arrangement, the property shall be divided and distributed equally.
d. If it is the nature of the co-mingled property that it cannot be distributed in kind and it is possible to determine Jane’s and John’s contributions to the cost of the property, then, unless Jane and John can agree in writing on some other arrangement, the property shall be sold and the proceeds of sale shall be divided and distributed pro rata with respect to their respective contributions.
e. If it is the nature of the co-mingled property that it cannot be distributed in kind and it is not possible to determine Jane’s and John’s contributions to the original cost of the property, then unless Jane and John can agree in writing on some other arrangement, the property shall be sold and the proceeds of sale shall be divided and distributed equally. Therefore, when co-mingling assets, Jane and John should make a special effort to document their respective contributions.
ARTICLE VII: WAIVER OF INTEREST IN QUALIFIED PLAN
1.Any individual retirement account, pension, retirement, death benefit, stock bonus, annuity or profit-sharing plan with respect to which John was, is, or shall at any time hereafter be, a participant or member including, without limitation, any plan of deferred compensation to which Section 401(a)(11)(B) of the Code and/or Section 205(b)(1) of ERISA
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After a couple decides to marry, they may choose to outline how their assets and responsibilities will be handled both during the marriage and in the event of a divorce. This is where a Prenuptial Agreement, often simply called a "prenup," becomes valuable. The process of filling out this form requires attention to detail and clarity about the couple's intentions and financial situations. It's an important step in ensuring that both parties enter the marriage with a clear understanding of how matters related to finances and assets will be managed. Below are the steps needed to fill out the form accurately.
Filling out a Prenuptial Agreement form is a proactive step towards a transparent and secure future for both parties. It provides a clear framework for managing financial matters and can help avoid conflict in the future. While the process may seem demanding, the peace of mind it offers makes it a worthwhile endeavor for couples looking to solidify their commitment to one another.
What is a Prenuptial Agreement?
A Prenuptial Agreement, commonly referred to as a "prenup," is a legal document that couples sign before they get married. It outlines how assets and financial affairs will be handled during the marriage and in the event of a divorce. Its primary purpose is to protect the individual financial interests of each spouse.
Who should consider getting a Prenuptial Agreement?
Anyone with personal assets, debts, or children from a previous marriage should consider a Prenuptial Agreement. It's especially relevant for individuals who own a business, have significant property or investments, or expect to receive a substantial inheritance. However, it can be a practical step for any couple looking to clearly define their financial rights and responsibilities.
Is a Prenuptial Agreement legally binding?
Yes, a Prenuptial Agreement is legally binding if it is correctly executed. That means it must be in writing, signed by both parties, and entered into voluntarily without duress. Both parties should also have adequate time to review the agreement and seek independent legal advice.
Can a Prenuptial Agreement decide child custody and support issues?
No, a Prenuptial Agreement cannot dictate terms regarding child custody or support. These matters are determined based on the child's best interests at the time of separation or divorce, and they cannot be predetermined.
How can one ensure a Prenuptial Agreement is enforceable?
To ensure enforceability, both parties should fully disclose their financial situations, seek independent legal advice, sign the agreement well before the wedding, and ensure the terms are fair and reasonable. Avoiding any sign of duress or pressure is crucial for the agreement's enforceability.
Can a Prenuptial Agreement be modified or revoked?
Yes, a Prenuptial Agreement can be modified or revoked, but any changes or revocation must be done in writing and signed by both parties. Some couples opt to include provisions for future adjustments to accommodate changes in circumstances.
What happens to a Prenuptial Agreement if one party did not have legal representation?
If one party did not have legal representation, it could impact the enforceability of the Prenuptial Agreement. Courts may scrutinize such agreements more closely to ensure that the unrepresented party fully understood the agreement and that it was entered into fairly.
Are Prenuptial Agreements only beneficial for the wealthy?
No, while prenups are often associated with protecting substantial assets, they can benefit couples of all financial backgrounds. They can clarify financial expectations, protect against debts, and establish financial responsibilities, contributing to a clearer and more secure relationship foundation.
What should be included in a Prenuptial Agreement?
A Prenuptial Agreement should include detailed information about each party's assets, debts, and properties, how property will be managed during the marriage, and how assets and debts will be divided in the event of a divorce or death. It can also outline agreements on spousal support. However, it cannot include terms that violate the law or public policy.
When couples decide to complete a Prenuptial Agreement form, they often move forward with excitement and a bit of apprehension about their future together. Despite the best intentions, numerous mistakes can be made during this process, compromising the document's effectiveness. One common error is not fully disclosing all assets and liabilities. Transparency is key in these agreements, and failing to list everything could nullify the contract or create significant issues later on.
Another frequent oversight is neglecting to hire separate attorneys. Some couples try to save money by working with one lawyer or foregoing legal advice altogether. However, each party needs independent counsel to ensure their interests are properly represented and protected. Without this, one partner might unknowingly agree to terms that are unfavorable or even prejudicial.
Rushing through the process is also a mistake many make. Prenuptial agreements involve nuanced discussions about finances, expectations, and personal values. Hurrying to complete the form without adequate consideration often leads to agreements that don’t reflect the couple's true wishes or circumstances. This hastiness can sow seeds of discontent or conflict later on.
Moreover, too often, individuals attempt to include invalid provisions, such as child custody and support arrangements, in their prenuptial agreements. These matters are left to the discretion of the court at the time of separation or divorce, based on the child's best interests. Including such terms can lead to parts of the agreement being disregarded by a judge.
Failing to update the agreement is another pitfall. Over time, financial situations and relationships evolve. An agreement made years ago may not suit the current state of affairs. Regular reviews and updates, conducted with legal guidance, ensure the document stays relevant and enforceable.
Underestimating the importance of clarity is a significant error as well. Vague language can lead to multiple interpretations, undermining the intent of the agreement. Precise terms and clear definitions are critical to avoid misinterpretations.
Some couples mistakenly believe that a prenuptial agreement sets the stage for divorce. This misconception might lead them to approach the agreement with a defensive or antagonistic mindset, rather than seeing it as a collaborative effort to secure their financial future. Such an approach can strain the relationship and result in a less than satisfactory agreement.
Last but not least, forgetting to consider the laws of the state where the marriage will be recognized can jeopardize the agreement's validity. Each state has its own laws governing prenuptial agreements, and failing to align the document with these regulations can render it ineffective. It's crucial to understand and adhere to the legal requirements of the specific state in which the marriage is to occur.
When couples decide to tie the knot, they often consider creating a Prenuptial Agreement to outline the management of their financial assets and responsibilities in the event of a divorce or death. This important document helps protect each person's interests, but it is not the only form that can play a crucial role in ensuring clarity and fairness for both parties. Several other forms and documents are frequently used in conjunction with a Prenuptial Agreement to provide comprehensive protection and straightforward arrangements.
In conclusion, while a Prenuptial Agreement is a critical document for couples to consider before marriage, it is by no means the only tool at their disposal. Complementing this agreement with a well-considered selection of other legal documents can provide a comprehensive framework that safeguards both parties' interests, offering peace of mind in the present and security in the future. Legal advice should be sought to ensure that all documents are properly drafted and reflect the couple's intentions and the laws of their jurisdiction.
A Postnuptial Agreement is quite similar to a Prenuptial Agreement, with the primary difference being the timing of its execution. While a prenuptial agreement is entered into before marriage, a postnuptial agreement is created and signed after a couple has already married. Both documents allow spouses to outline the ownership of financial assets and debts, and set forth the terms for division of property and financial responsibilities in the event of a separation, divorce, or death.
A Cohabitation Agreement shares common features with a Prenuptial Agreement, though it's designed for couples who live together without getting married. This document outlines how assets and liabilities would be handled during the relationship and in the event of a breakup. Similar to a prenuptial agreement, it can include provisions for property division, debt assignment, and financial responsibilities, providing legal protection for both partners involved in the cohabitation.
An Operating Agreement for LLCs, while primarily used in the context of business, bears resemblance to a Prenuptial Agreement in terms of structure and purpose. It outlines the financial and working relationships among business owners (members of an LLC). Just like a prenuptial agreement, it can detail the distribution of assets and liabilities and operational responsibilities, aiming to prevent disputes among members by clarifying expectations and agreements in advance.
A Partnership Agreement is another business-related document that parallels the Prenuptial Agreement. It specifies the terms and conditions under which a business partnership operates and delineates the responsibilities and profit-sharing among partners. Similar to a prenuptial agreement, it serves to preemptively resolve disputes by clearly defining each partner’s contribution to and rewards from the partnership, analogous to how marital assets and responsibilities are managed.
A Separation Agreement is closely related to a Prenuptial Agreement, being relevant in the context of a relationship breakdown. This agreement comes into play when a couple decides to separate but not immediately divorce, detailing how assets, debts, child custody, and spousal support will be handled. Like a prenuptial agreement, it is a proactive measure to manage financial and family arrangements, though it is executed at a different stage in the relationship.
A Will, or Last Will and Testament, while generally associated with estate planning rather than marital arrangements, shares the forward-looking, preparatory nature of a Prenuptial Agreement. It specifies how an individual’s assets and responsibilities are to be distributed upon their death. Both documents serve to clarify intentions and ensure that assets are allocated according to the drafter’s wishes, thereby preventing potential disputes among survivors or family members.
A Trust is an estate planning tool that, like a Prenuptial Agreement, involves setting terms for asset management and distribution. A trust can specify how and when assets are to be distributed to beneficiaries, similar to how a prenuptial agreement might outline the division of property in the event of separation or divorce. Both documents allow individuals to make clear, legally binding arrangements concerning their assets, offering protection and peace of mind for the parties involved.
When it comes to planning your future together, a Pre-nuptial Agreement can be an important document for couples looking to outline their financial rights and responsibilities before marriage. Making sure your agreement is clear, fair, and legally binding is crucial. Here are some dos and don'ts to consider when filling out your Pre-nuptial Agreement form:
Remember, a Pre-nuptial Agreement is not about mistrust; it's about having a clear plan for the future. With careful consideration and legal guidance, you can create an agreement that supports both partners' interests and fosters a strong foundation for your future together.
Prenuptial agreements, often surrounded by misconceptions, are important legal documents that define the distribution of assets and responsibilities in the event of a divorce. These agreements are not just for the wealthy, but can be a practical tool for many couples. Here are four common misconceptions about prenuptial agreements:
When considering the use of a Prenuptial Agreement form, it's essential to understand its purpose and how it can impact your future. A Prenuptial Agreement, often referred to as a "prenup," is a legal document that a couple signs before getting married to outline the ownership of their respective assets should the marriage end in divorce or separation. Here are four key takeaways to keep in mind:
Understanding these key points can help couples approach Prenuptial Agreements thoughtfully and responsibly, ensuring that the agreements serve their intended purpose without causing undue stress or conflict.
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