Free Prenuptial Agreement

A Prenuptial Agreement ( or prenup ) is a contract before marriage to define financial and property rights should the marriage end in separation.

While wealthy individuals typically use the agreement, people of all backgrounds can outline terms that benefit themselves and their relationship with their partners. Death or divorce, in particular.

While they all have the same meaning, prenups may also be referred to as:

• Antenuptial agreement
• Prenuptial contract
• Domestic contract
• Marriage contract
• Premarital agreement

Table of Contents

• What Is a Prenuptial Agreement?
• How Does a Prenup Work?
• Common Prenuptial Agreement Clauses
• How To Write a Prenuptial Agreement‌
• What To Include in a Prenuptial Agreement
• Frequently Asked Questions

What Is a Prenuptial Agreement?

A prenuptial agreement is a marriage agreement that outlines the financial and property rights of a couple should they ever divorce. This includes:

• Separate or Non-marital Property
• Marital Property (i.e., community or common law property)
• Business Ownership
• Savings and Retirement
• Alimony and Spousal Support

Separate Property / Non-Marital Property

In a divorce, the court will generally divide marital property between both parties but exclude assets known as “separate property” or “non-marital property.” However, during marriage, commingling—or mixing—the separate property may occur and cause the property to lose its separate status.

To prevent this, a prenuptial agreement can designate which partner gets what in the event of a divorce.

Separate or non-marital property includes:

• Premarital property (property individually acquired before marriage)
• Any inheritance or gift received from a third party during the marriage
• Compensation from most personal injury awards
• Property acquired after separation

Marital Property

Anything acquired during marriage by either partner is generally regarded as shared marital property that belongs equally to each partner. However, you can use a prenuptial agreement to exclude specific property from being considered marital or “community property.”

Marital property includes:

• Earnings by each spouse during the marriage
• Property bought using either spouse’s earnings during marriage
• Separate property that has commingled with other marital property (e.g., an individual bank account in which both spouses deposit funds)

Business Ownership

Suppose you began a business before getting married. Your spouse may be entitled to 50% of any increased value in the business that occurred during the marriage.

However, with a prenup, business owners can designate the status of a business owned before marriage as separate property. In the event of a divorce, this agreement would ensure that the business owner possesses exclusive rights to the business.

Savings and Retirement Goals

Couples can use prenuptial agreements to make concrete future financial plans together and decide how they will invest, save, or spend their money.

For example, each spouse can agree to contribute a certain amount of money into joint bank accounts or determine a regular spending allowance. Similarly, a prenuptial agreement can clarify whether joint household expenses, like a mortgage, will be paid from separate or joint bank accounts.

Alimony and Spousal Support

A prenuptial agreement can explicitly determine whether or not the more disadvantaged partner will receive financial support. State laws, however, vary on whether a spouse can entirely waive or give up the right to receive alimony or spousal support.

When determining alimony, a judge and spouse may consider the following:

• If there is no spousal support, will the spouse become destitute and unable to provide for themselves?
• Does the poorer spouse have limited business experience?
• Did the wealthier spouse fully disclose all their assets and wealth?
• Did the disadvantaged partner truly understand the rights they were giving up?

Children from a Previous Relationship

Suppose one partner has children from another relationship. In that case, a prenup can ensure that separate premarital property is shared with these children. Even when a will exists, prenuptial agreements can clarify and reinforce expectations to avoid costly legal battles that ultimately eat away at the estate.

Note: A prenuptial agreement cannot be used for unborn children from a new marriage.

As the property division in divorces can become complex, couples deciding on a prenup can avoid stress and reduce time spent in court by dissolving their marriage. 

However, suppose you decide to end your marriage without a prenup. In that case, you will likely need to use a divorce agreement to determine how to divide up your belongings.

Alternatively, a cohabitation agreement exists for couples who wish to live together but not get married. Because of the complicated case law surrounding unmarried partners, you should check with an attorney if you want to create one of these.

How Does a Prenup Work?

A prenup is a legal contract involving property division under marriage laws. Many states, such as California, follow the Uniform Premarital Agreement Act (UPAA), which sets out specific rules and guidelines for anyone creating a premarital agreement. 

Financial disclosure: The prenuptial agreement must indicate that the parties have fully, fairly, and honestly disclosed all their financial information to one another.

Opportunity for legal counsel: Either separate attorneys must represent both parties, or the unrepresented party must indicate in the document that they had a chance to consult independent counsel and chose not to.‌

Waiting period. In some states, such as California, a state-mandated waiting period must occur between the parties receiving the prenup and signing the document. For example, the waiting period is seven days in a California prenuptial agreement.

Fair and Reasonable Terms. A contract considered “unconscionable” by the courts is grossly unfair or contains unreasonable or impossible terms. The courts will not enforce such a contract. 

Signatures and Notarization. The requirements vary from state to state, but both parties must sign the prenuptial agreement. The document must also be notarized and witnessed by at least one impartial party, such as a notary public. 

Each state has specific requirements, so check with your state or consult a licensed attorney to ensure you have created the document correctly.

Common Prenuptial Agreement Clauses

There are many different clauses you can include in a prenuptial agreement. They can range from property division to spousal support and child provisions. Some of the most common clauses are below: 

Identification of Debts and Assets. 

Identify separate property and significant debts owned by each spouse before the marriage to ensure they keep ownership in the event of a divorce. Under most marriage laws, ownership of separate property ends at the beginning of the marriage. A divorce case can become contentious if a spouse needs to prove ownership of specific assets. So prenups are crucial for establishing your rights to your property. 

Community Property

In most states, anything acquired or earned during the marriage becomes the property of both parties. States like California, which follows community property law, will divide property in a 50/50 split when you get a divorce. If you and your spouse want to divide community property differently, the premarital agreement will clarify this.

Alimony

Both parties can agree to a set amount for spousal support or waive it entirely by mutual consent. However, both parties should be aware that circumstances may change. The court will often not enforce a prenup if it severely disadvantages one party, even if they voluntarily and knowingly entered into the agreement.

For example, suppose a woman agrees to waive alimony in the prenup, and the husband later divorces her, leaving the woman with no job and no source of income; the court may still require the husband to provide spousal support. 

The Infidelity Clause

Some prenuptial agreements may include a morality clause, such as an infidelity clause. If a party discovers their spouse is having an extramarital affair, the cheating spouse must award the injured party compensation like a monetary sum. Such a clause is uncommon, and most states will be reluctant to enforce it since there is an inherent difficulty in proving infidelity in court due to the document having unclear wording. 

For example, you need to clearly define acts of infidelity in the agreement and detail the means to prove it. Including such a clause can cause more harm than good in a marriage. You should consult a family law attorney to help you use the correct wording if you want to include this clause in the agreement.

How To Write a Prenuptial Agreement‌

Whether you choose to create your prenup or use our prenuptial agreement template, there are some steps you should take before sitting down to put your agreement on paper.

Assemble all financial documents. The parties will need to affirm that they have fully disclosed their finances. It will help if you have all the documents in one place.

Describe the parties’ premarital status. If there are children from a previous marriage, any other marriage orders, or existing judgments, you must include them.

Provide the names of your attorney(s). If either party has legal representation, you must provide it.

Alternatively, you can use our step-by-step form builder, which provides helpful prompts that allow you to quickly fill in the required information. 

Regardless of your choice, it would be best to consider having an attorney review the completed document to ensure it complies with state requirements. 

What To Include in a Prenuptial Agreement

Some things you might want to list in your prenup besides your property and bank accounts could include:

Business Ownership/Partnership. Once a couple is married, any income derived from a business becomes community property. The spouse may be entitled to half that income after a divorce. If you want to separate the ownership or funds, you should list them in a prenup.

Retirement Plans and Insurance. In some states, an employee’s pension goes to their spouse upon death, regardless of divorce. The parties can agree to offset this payment in the prenup. Other retirement plans and insurance companies pay the amount to the named beneficiary. The parties should consider how they want to divide these assets in the event of a divorce.

Heirlooms and Gifts. Under marital property law, heirlooms and gifts given to a spouse are marital property. However, suppose you’d like to prevent specific property, such as a family ring, from being your spouse’s property after a divorce. In that case, you should specify this in your prenup. 

Frequently Asked Questions