Table of Contents
- Free Prenuptial Agreement Template
- The Definition: What is a Prenup?
- Is a Prenuptial Agreement Right for You?
- Why Use One? The Pros vs. the Cons
- How to Make Your Agreement Valid
- Common Questions to Ask Yourself
1. Download a Free Prenup Template
2. The Definition: What is a Prenup?
A prenuptial agreement is a written contract that is entered into before a couple gets married, most commonly when they are engaged. Often referred to in abbreviated form, a “prenup” spells out the financial and property rights of each spouse, should the marriage end in separation; specifically by death or divorce.
PDF Sample Prenuptial Agreement
The prenuptial agreement sample below details a contract between ‘Johnny Appleseed’ and ‘Penelope Bucksworth.’ The engaged couple agrees to maintain separate ownership of all property that they acquired before the marriage. However, all property acquired individually during the marriage will be treated as marital property and owned by both Johnny and Penelope.
Prenuptial-Agreement-Sample6 common questions that this document answers:
1. Do you want property that is acquired individually by either spouse BEFORE the marriage to remain separate?
(“separate premarital property” or “nonmarital property”)
If yes, anything that was acquired before marriage will continue to belong to that person. If you bought stocks for $100 before getting married, those stocks may be worth $1 million down the road, but that increase in value only belongs to you if there is a separation. Similarly, if you have $100,000 in pre-existing debt from college or graduate school, that debt continues to only belong to you and not your spouse. Furthermore, if while married, you receive an inheritance or gift from your beloved great-grandmother, that inheritance or gift will continue to be yours if there is a separation.
2. Do you want property that is acquired individually by either spouse DURING the marriage to be considered shared marital property?
If yes, anything that is acquired during marriage by one partner equally belongs to the other partner. If you two purchase a house together for $500,000 after getting married, you both own 50% of the house and its value if it appreciates to $1 million at the time of separation.
3. How do you want to handle the ownership of your business?
(mixed: some shared “marital property” and some separate “nonmarital property”)
If you own 100% of a business worth $50,000 before getting married, you can designate that your spouse-to-be will own 50% of the business. If during your marriage, with the help of your spouse, your business appreciates to $500,000, you both own 50% of the increased value, so you would get $225,000 each. However, if you want your business to be considered nonmarital property, keep in mind that your spouse may be entitled to half of any increased value in the business that occurred during the marriage.
4. What are your savings and retirement goals?
The couple can 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 whether there will be a regular spending allowance. Similarly, this document can clarify whether joint household expenses, like a mortgage, will be paid from separate or joint bank accounts.
5. How will alimony or spousal support be handled?
This document can explicitly determine that the more disadvantaged partner will or will not receive financial support. State laws, however, vary on whether a spouse can completely waive or give up the right to receive alimony or spousal support.
Here are some questions that both a judge and a loving spouse might consider when determining alimony:
- 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 richer spouse fully disclose all their assets and wealth?
- Did the disadvantaged partner truly understand the rights they were giving up?
6. How will children from a previous relationship be supported?
If one partner has children from another relationship, this document can ensure that separate premarital property is shared with these children. Even when a will exists, a prenuptial agreement form can clarify and reinforce expectations, to avoid costly legal battles, that ultimately eat away at the estate.
Note: This contract can’t be used for unborn children from a new marriage.
As a reference, people often call this document by other names:
- Antenuptial Agreement
- Prenuptial Contract
- Domestic Contract
- Marriage Contract
- Premarital Agreement
In contrast to a premarital agreement, a postnuptial agreement is entered into after marriage, and a cohabitation agreement is entered into when two individuals want to live together but not get married.
3. Is a prenuptial agreement right for you?
I should use a prenup if:
Practical:
- There is a large difference between spouses in wealth or property
- I was in a previous marriage
- You are engaged
- You are a celebrity
Financial:
- Either my spouse or I have a large amount of personal debt
- There is a large difference in past or future earnings from your job
- You have accumulated more than one year’s worth of employment or retirement benefits
- You want to decide who and how each spouse pays household bills
Property:
- You own real estate
- I am the owner or partner of a company, nonprofit, or business
- I am concerned about how my new marriage interacts with my estate
Family:
- I have children from another relationship
- You expect to receive or have already received an inheritance
- One partner will stay at home and raise children
- One spouse plans to pursue an advanced degree while the other works
I shouldn’t use a prenup if:
Practical:
- The prenup is heavily in favor of one party
- You or your spouse are planning on violating public policy or committing an illegal act
- I am being coerced into signing the document
- My own lawyer has not looked it over
- My spouse and I agree with our state’s default divorce law
Financial and Property:
- Neither spouse has sizable assets
Family:
- You want to limit future custody and visitation rights of children
- You want to waive child support
- You want to waive alimony or spousal maintenance
You need not be like infamous celebrity couple, J. Howard Marshall and Anna Nicole Smith, to benefit from a premarital agreement. Smith married billionaire oil tycoon J. Howard Marshall in the last 14 months of his life, in what was considered a highly questionable marriage on Smith’s part, resulting in a long-lasting legal battle involving the distribution of Marshall’s estate.
Prenups aren’t just for the rich and famous and no one is immune from a highly contentious divorce, evident from a 2016, National Center for Health Statistics study placing the U.S. divorce rate at nearly 50 percent. Don’t end up like these celebrities who ditched the prenup in favor of “happily ever after.”
- Mel Gibson and Robyn Moore: With a net worth exceeding $900 million USD, Mel Gibson and his ex, Robyn Moore, skipped the prenup in favor of ever-lasting love. Unfortunately, after 26 years of marriage, and an infamous drunk-driving incident, they called it quits. The payout to Moore was estimated to be in excess of $425 million USD, about half of “William Wallace’s” net worth.
- Guy Ritchie and Madonna: After nearly 8 years of marriage, “Like a Virgin” pop icon, Madonna, and British filmmaker, Guy Ritchie, divorced. With no prenup drafted, it is rumored Ritchie received between $76 and $92 million USD, almost a quarter of Madonna’s net worth.
- Paul McCartney and Heather Mills: Whether or not “Paul is dead,” Beatles’ singer-songwriter Paul McCartney ended up shelling out almost $50 million USD to English businesswoman Heather Mills. Luckily for McCartney, this number was nearly $200 million USD lower than original requested by Mills.
In the event you decide to end your marriage without a prenup, you will likely need to use a Divorce Agreement to determine how to divide up your belongings.
Do same-sex couples need this document?
After the June 2015 Supreme Court ruling in Obergefell v. Hodges, and the legalization of same-sex marriage nationwide, the IRS weighed in on same-sex marriages for federal tax purposes. According to a 2013 Forbes article, even before the landmark Supreme Court ruling, same-sex couples would have benefitted from this document.
If you live in a community property state, where all property earned or acquired by either spouse is owned 50/50 (except for property received through gift or inheritance), a prenup can help each spouse keep their property and liabilities separate and avoid triggering their state’s default community property laws and Court guidelines, which may prove more intrusive and overreaching.
Discover the 5 Ways a Prenup Can Save Your Marriage and how to open the discussion.
4. Why use one? The pros vs. the cons
The Pros: A Premarital Agreement can…
- Serve as a form of marriage insurance
- Settle any major financial concerns before the marriage
- Protect your business from being split between you and your ex-spouse
- Prevent you from taking on your spouse’s debt
- Lay out repercussions if your spouse commits adultery
- Safeguard the inheritance of your children from a previous marriage
- Protect your financial and property assets acquired before the marriage
- Help you avoid costly litigation fees in the event of a divorce
- Provide for a spouse who is going through college or professional school
- Help the couple practice communicating and negotiating important issues in the relationship
The Cons
- Prevents you from being entitled to a portion of your spouse’s estate or inheritance
- You may not be entitled to a share of the increased value of your spouse’s business even if you helped contribute to that growth
- You may risk damaging the level of trust within the relationship and increase suspicions between the couple
- A premarital agreement cannot anticipate every potential financial issue throughout the marriage and could end up complicating things if circumstances change
- Depending on the laws of your state, your agreement could still be overturned in court
Create Your Free Prenuptial Agreement
Get Started Now!
Remember, the list above is not exhaustive. There are many other agreements couples can make in a prenuptial agreement.
5. How to make your agreement valid
When approaching the crafting of a prenup, there are two goals; a fair process, and fair terms. Although courts may take different stances on what is and what isn’t fair, the process by which the prenup is negotiated, and the terms of agreement are usually the same in all 50 states.
In order for a prenuptial agreement to be enforceable in court, it should meet five basic procedural requirements. Here’s how to make sure your process of creating a prenup is valid:
- must be in writing
- must be signed voluntarily (free of duress or undue pressure)
- must have been signed after full and fair disclosure
- must not be unconscionable (must be fair and reasonable)
- must be signed by both individuals before a witness and notary public
To determine the fairness of the terms of a prenup, a court will look at:
- The ability of each spouse to support themselves after divorce or death
- The goals of both parties entering the agreement
- The amount of property and income each spouse owns
- Family obligations and relationships
- Each spouse’s occupation, education, and earning capacity
- Future needs of each spouse
- Each spouse’s expected contribution to the marriage
- The age and health, emotional and physical, of each spouse
Open communication is essential to a functioning marriage. Start conversations about this document well in advance of the wedding day. If your prenup is signed less than 24 hours before a wedding, the court may reasonably find that one spouse unwillingly signed under pressure.
To avoid a legal hassle, your document should address the following concerns, and avoid the following legal issues:
Top 2 Concerns a Prenup Should Address
1. Governing Law
If the agreement is challenged, the default is that the laws of the state where you are getting divorced apply if you meet the state’s residency requirements (i.e. 6 weeks or 6 months), if any. If you want the laws of the state where you were married to apply, you must specify this in your document.
2. Sunset Provision
Some couples may agree that the premarital agreement should expire after a certain number of years or after a child is born. State laws sometimes enforce Sunset Clauses in divorces between couples married for a short time or with no children. For example, in California, summary dissolution serves an expedited divorce process for couples married for less than five years and with no children, among other factors.
Top 2 Legal Issues You Should Avoid
1. Lifestyle Clauses
Lifestyle clauses are clauses written into an agreement which outline how the individuals should behave during their marriage, or outline the decisions they have made concerning such matters as in-laws, religion, the upbringing of children and even infidelity (also known as a “bad boy” or “bad girl” clause).
Laws relating to these agreements, and therefore lifestyle clauses are state-dependent. Therefore, if you are considering including a lifestyle clause you should first check your state laws to ensure they are legally admissible and enforceable. For example, only some states will enforce a “bad boy” or “bad girl” clause, which requires financial compensation should one party commit adultery or any other infidelity.
The enforceability of a lifestyle agreement is dependent on both the state’s laws and whether the court considers the clause to be fair and legally-sound (and thus, legally enforceable). Although many states do not enforce lifestyle agreements, many couples choose to include them to help guide their behavior and decisions in their marriage.
If you’re unsure about the legality of lifestyle clauses in your state, or have any further questions, it is best to consult a lawyer before including these clauses in your agreement.
2. Contrary to Public Policy
The law favors stable marriages in society. Therefore, you are not allowed to “buy” a divorce in a prenuptial agreement. For instance, you cannot include a provision that you will make a lump sum payment to get out of a marriage.
After executing a valid Prenup, don’t forget to store it in a safe place, such as a safety deposit box or filing cabinet, in case you need to present it to a judge, county clerk, or other official at a later date. Also, don’t forget to make a photocopy, should the original be destroyed or misplaced.
6. Common Questions to Ask Yourself
Click on any question to expand the answer.
General Questions
A. Choosing whether or not a prenuptial agreement is in the best interests for you and your partner requires you both to make a number of important considerations.
Read the following resources for more information:
A. Lifestyle clauses are clauses written into a prenuptial agreement which outline how the individuals should behave during their marriage, or outline the decisions they have made concerning such matters as in-laws, religion, the upbringing of children and even infidelity.
Laws relating to prenuptial agreements, and therefore lifestyle clauses vary from state to state. As such, if you are considering including a lifestyle clause in your prenuptial agreement it is essential you first check your state laws to ensure they are legally admissible and enforceable.
If you are unsure about about the inclusion of lifestyle clauses in your prenup, it is best to consult a lawyer.
Spouse Questions
A. Include each person’s full name and address as part of the contact information to be listed on the agreement. You will also need to include the following information in later sections:
- Marital background
- previous marriages
- children
- Legal representation
- attorney names
- attorney addresses
- Financial disclosures
- bank accounts
- debts or loans
- assets
- property
- business ownership
- stocks
- retirement accounts
- credit card balances
A. The abbreviated names are shortened names that will be used to refer to the each spouse throughout the document. For example, if one spouse’s name is “John Doe,” you may choose “John” or “JD” as the abbreviation that will be used throughout the document.
A. Yes, both spouses need to disclose whether they have been married before and/or if they have children on their premarital agreement.
If one spouse has children from another relationship, a this agreement can ensure that their separate premarital property is shared only with their children when that spouse dies.
Even when a will exists, a premarital agreement can clarify and reinforce expectations to avoid costly legal battles that ultimately eat away at the estate.
Here’s a real life example.
John has one son from a previous marriage. John owns a $50,000 antique car that he wants to give to his son as an inheritance. John is getting remarried, and wants to ensure that when he dies, the $50,000 car will belong to his son. Including his son in the agreement will clarify that only his son will inherit the $50,000 antique car.
Even when a will exists, this agreement can clarify and reinforce expectations to avoid costly legal battles.
A. The date and location of the wedding indicates the official start date of the marriage of both partners. After the marriage date, the prenuptial agreement becomes legally binding. If either spouse does not have this information on hand, it can be left blank to be filled in later.
Marriage Plan & Legal Representation Questions
A.
No Attorneys
You do not need an attorney for the document to be legally binding. If both of you choose not to have an attorney, you can both waive the right to legal representation. By waiving the right to get “independent legal advice” from an attorney representing each person, you both agree to the following statements:
- You both understand the contents of the prenup.
- You both believe it is fair and reasonable.
- You both acknowledge that you entered into the agreement voluntarily.
One Attorney
Courts may be worried that the document is not fair if only one person had legal representation.
Two Attorneys
Ideally, both spouses have an attorney representing their interests. This way, the courts are more likely to honor the agreement, and the spouses are less likely to make costly legal errors.
A. A useful agreement you can link to your premarital agreement is a Divorce Agreement. This is a written document that outlines, with specificity, all the agreements between two parties concerning the division of their assets, property, debts, and arrangements for the custody, care and support of their children, if any.
Without a Divorce Agreement, the parties must rely upon their ability to present a case to a Court, and must accept the judgment from either a judge or jury in the event they decide to divorce.
It is used when you and your partner already decided on all the issues, including how to divide their property and how to divide time, care, control and support of any children. If you are unsure whether you want to include a Divorce Agreement at the time of making your prenup, you can also decide to make one if you choose to divorce.
Property Questions
A.
Marital Property
Marital property is any asset owned by both partners. For instance, if you and your spouse purchased a home and share ownership of the property, it would be considered marital property. Specifying marital property is important because separation or divorce disputes will determine how marital property will be distributed between the two parties. The prenuptial agreement allows couples to agree before marriage what property is designated as marital property.
Non-marital Property
In contrast, non-marital property is the property that you do not want to be considered “shared” between the couple. Your spouse will not have ownership/liability in any way. You can specify in the agreement the property that you do not want to be considered marital property, so that only one person will have ownership/liability. In case of divorce, non-marital property is not subject to division and remains the sole property of the individual.
A. The division of property can be set by percentages (i.e. first party 50% and second party 50%). Another option is to divide property according to state law. If the couple cannot agree on how to divide property, a judge will decide for them. Usually, property will be divided equitably or fairly based on various factors if the parties did not specify how the property will be split.
Click the following link for information about which state laws would govern your divorce proceedings.
A. Tenants in common refer to shared ownership of property by two or more people; it can be shared equally or unequally. If one party dies, the property transfers to the decedent’s heirs.
A. You can choose from four options:
- Grant the appreciation in value to the first spouse entirely
- Grant the appreciation in value to the second spouse entirely
- Share the appreciation equally, or
- Share the appreciation by a percentage
For example, let’s say you own a business worth $100,000 before marriage. In this document, you decide to share the appreciation in value equally. Your business appreciates in value to $200,000.
That is a $100,000 appreciation. If your marriage unfortunately ends, you would split the appreciated value, meaning you each get $50,000.
A. The law usually treats pets as personal property with no special status. Some courts, however, treat pets like children and apply a similar “best interests of the pet” consideration.
Pet custody would therefore be likely awarded to the person who has provided basic daily needs like food, medical attention via a veterinarian, social interaction with other animals, appropriate supervision under state and local regulations (like a dog license or complying with off-on leashing rules), and financial support.
Marital Debt Questions
A. Marital debt includes any financial obligations jointly shared by both you and your partner because of marriage. Each of you are liable for marital debt, even if only one person originally incurred the debt.
A. If you accrue debts, loans or financial obligations during your marriage, you and your partner can decide whether these debts will remain only one person’s responsibility or whether both of you share the responsibility in the event of a divorce.
You have three options:
- Keeping your debts accrued during marriage separate
- Designating your debts accrued during marriage as shared
- Keeping everything separate, with exceptions
For example, Alex and Casey are married, and have agreed to designate all debts accrued during marriage as shared. Alex takes out a $30,000 student loan, and Casey remains debt-free. Alex’s $30,000 loan thus becomes shared marital debt. This means that Casey agrees that he is also responsible for Alex’s loans, even in the event of a divorce. Even more, Casey is agreeing that creditors would be able to go after Casey for the student loan money Alex owes.
A. The division of debt can be set by percentages (i.e. the first party 50% and second party 50%). The second option is to divide debt in accordance to state law. If the couple cannot decide on a way to divide debt, the couple will need to go to court, and the judge will decide how the property should be divided. Usually, property will be divided equitably or fairly based on various factors if the parties did not specify how the property will be split.
Click the following link for more information about how your state will govern a divorce.
Housing and Housing Arrangements
A. You can decide in the agreement what counts as regular living expenses, and what does not.
Items commonly considered to be regular living expenses:
- Electricity
- Water
- Gas
- Telephone
- Cable
Items commonly NOT considered to be regular living expenses:
- Cellular phone
- Clothing
- Gasoline for car or truck
- Entertainment (movies, baseball games, etc.)
A.
Owner
If you or your spouse owns a residence (either separately or shared), you can indicate in the contract how you want the ownership to be affected. You can decide whether to keep ownership separate or shared.
Renter
If you or your spouse are renting an apartment or home, you can indicate how the lease agreement should be changed in the event of a divorce.
A. Yes, you may. You can stipulate one of the following:
- One person pay all the expenses
- Both people will share the expenses equally
- Each person will pay for expenses
You can decide what counts as regular household expenses, and what does not.
Items commonly considered to be regular household expenses:
- Electricity
- Water
- Gas
- Telephone
- Cable
Items commonly NOT considered to be regular household expenses:
- Cellular phone
- Clothing
- Gasoline for car or truck
- Entertainment (movies, baseball games, etc.)
A. You can stipulate in the prenup who will get custody over the pet if you owned one before marriage.
