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A prenuptial agreement may be a legally binding contract entered into by two individuals who want to get married. The purpose of a pre-nup, as it is also known, is to protect the interests of each party. Before signing a pre-nup, it is important to have it reviewed by a lawyer to make sure that you're not being treated in a way that is grossly unfair. Although most prenuptial agreements may be legally binding, there are certain instances where a family law judge may throw out or alter the agreement because of some of its conditions.

Prenuptial Agreement

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What Is a Prenuptial Agreement Template?

A prenuptial agreement is used between a couple who have decided to get married. The agreement outlines what will happen to assets, debts, and income if the couple divorces or if one partner dies. The form serves to protect both parties. Prenuptial agreements are commonly used by couples who have substantial assets or earnings.

A prenuptial agreement form can be used for marriage or a civil union. Clauses can be included in the agreement for issues such as adultery. This clause could include stipulations that state the adulterer will forfeit their rights to assets or property in the event of a divorce filed because the spouse was unfaithful.

Prenuptial agreements may be legally binding contracts. However, they do not have to be enforced if both parties agree to another settlement in a separation or divorce scenario. These agreements do not necessarily affect custody of any children born into the marriage even if it is mentioned within the agreement because the children's welfare will be considered first and foremost by the court.

Other Names

Prenuptial agreements are also referred to as:

  • Prenup
  • Antenuptial Agreement
  • Marriage Contract
  • Marriage Agreement
  • Premarital Agreement
  • Premarital Contract
  • Domestic Contract
  • Domestic Agreement

Who Should Use Prenuptial Agreement Forms?

Despite the bad reputation that prenuptial agreement forms receive, they are meant to help protect both parties in the likelihood that a separation or divorce happens. So, they can be used by any couple who plans to get married. However, a premarital agreement is particularly helpful if you:

  • Have children from a previous marriage or relationship. The way that most inheritance laws work in each state is that the spouse at the time of death, regardless of whether they are the biological parent of any or all children with the decedent, will inherit at least half of the decedent’s assets unless there is a Last Will and Testament or a premarital agreement that expresses the decedent’s wishes.  
  • You have assets, such as a business or inheritance, that you want to keep separate from marital property. When a divorce or separation occurs, courts look at assets with the goal of equitable distribution. The court will look at a prenup to determine if certain assets were set aside as separate property in addition to using state divorce laws to divide assets between the couple.
  • You want to avoid fighting if your spouse dies or if you separate or divorce. The death of a spouse, a separation, or a divorce are all stressful times. A premarital agreement can make a difficult time easier by creating a roadmap.
  • You want to protect your retirement account. It doesn’t matter if you’ve just started your retirement account or if you have millions of dollars tucked away for your sunset years. Without a prenup, your spouse may be entitled to a substantial portion of any or all of your retirement accounts if you separate or divorce.
  • The amount of money the two of you earn is substantially different or will be substantially different in the future. Protecting your finances while also agreeing to possibly provide appropriate support is one of the most common uses of a prenuptial agreement.

Components of a Prenuptial Agreement

Because a prenuptial agreement may be a legally binding contract, it needs to have certain information in it. It must also include all of the elements that make up a legal contract. The parties to the contract must be of legal age. They must be of sound mind. They may not be entering into the contract because they’re under duress.

If you are creating your own prenuptial agreement, you should look at prenuptial agreement samples online to get an idea of what it should look like. You’ll need certain information to complete a prenuptial agreement:

  • The full legal names of the two parties entering into the agreement.
  • The date that the couple is entering into the agreement.
  • Which assets will be considered separate or non-marital property for each person in the event of a separation or divorce. This may include individual assets acquired by each person before the marriage occurred, inheritances or gifts received from a third-party during the course of the marriage, personal injury compensation from a lawsuit or settlement, and other assets.
  • Which party will receive designated non-marital assets in the event of a divorce. This is important even if both parties share the asset during the marriage.
  • Which debts are considered separate or non-marital property for each party.
  • Which party will receive designated non-marital debts in the event of a divorce.
  • Marital property is defined as assets acquired during the course of the marriage and should be addressed in the prenup. It doesn’t matter which party acquired the asset or if the parties purchased or received the asset as a couple. The most common forms of marital property that should be addressed include the income made by each spouse during the marriage, assets purchased using either (or both) spouse’s money during the marriage, and the possibility that some separate assets may be intermixed with marital assets.
  • If any of the marital property is going to be excluded from joint ownership and will be given to one party or the other in the event of a divorce. This is particularly important in community property states because marital assets, except gifts or inheritances, are seen by the court as being owned 50 / 50 by the couple.
  • Any businesses or ownership interests in business should be addressed. Even if the business was started before the marriage occurred, a divorce could mean that one of the party who did not start the business still has an ownership interest. That interest could be as high as 50%. A prenuptial agreement can help you protect any business you started before the marriage by designating it as separate property.
  • Savings accounts and retirement accounts. A prenuptial agreement can be used to do more than determine who will control certain savings accounts or retirement accounts. It can also be used to obligate one or both spouses to contribute a certain amount of money each month to certain accounts. It can also be used to establish a spending allowance, which bank accounts will be used to pay for marital or family expenses, and who is responsible for paying for those expenses (including the mortgage).
  • How much spousal support, if any, will be paid if the couple separates or divorces. Some states do not allow spouses to waive the possibility of receiving spousal support. It’s important for you to talk to a lawyer and learn about the laws in your state. A prenuptial support can state how much support, if any, will be paid and for how long it will be paid. This can help protect stay at home spouses or spouses who don’t make as much money from becoming financially destitute.
  • How separate property should be distributed in the event of death. A prenuptial agreement is a tool that can ensure that children from a previous relationship are taken care of in the event of death. A prenuptial agreement can clarify which property should be given to children (minors or adults) and the current spouse. It’s a useful agreement to help cut down on stress and fighting during an emotionally difficult time.
  • What happens in the event a divorce is filed because of adultery or other listed reasons. Often, a prenup will invoke some sort of financial penalty on the party who commits adultery. This could mean that the spouse who committed adultery pays their spouse. It could also mean that the spouse who commits adultery gets no financial support or assets outside of whatever assets they brought into the marriage.

Difference Between Separate and Shared Property

Because a prenuptial agreement is often used to specify which property will be given to which party if a divorce or separation occurs, it’s important that you really understand the difference between separate property and shared property.

Using a prenup to call certain assets “separate” means that you’re saying that you (or your spouse) solely and fully own that item. If the relationship ends, the owner of the separate property continues to own that property. They can do whatever they want with it. If you buy a condo, a car, or start a retirement account before you meet your spouse or before you marry your spouse and that item is only in your name, it is considered separate property. That is because you acquired the item before the marriage took place. A prenuptial agreement helps ensure that your items before the marriage remain as yours alone if the relationship ends.

Shared property is defined as any asset that is acquired while the couple is married. Depending on the state you live in, even property that you buy during the marriage that is only in your name may be considered marital property. When a marriage ends, the value of the marital property is split 50 / 50. One spouse may have to buy out the interest of the other spouse in an item. Property division can get quite messy during the divorce process.

Financial Prenup vs. Conflict Resolution Prenup

A traditional prenuptial agreement addresses financial assets as well as physical assets. Overall, it addresses what will happen from a financial perspective if the couple becomes involved in a divorce.

A conflict resolution prenup doesn’t outline what will happen financially if a divorce or separation happens. Instead, if explains how the couple will try to resolve conflict if it gets to the point that they’re considering a divorce.

Prenup Pros and Cons

It’s often said that using a prenup means that a couple doesn’t really love each other. However, that’s just not true. A prenup helps the couple in many ways. It can:

  • Address any potential financial concerns. Money is the number one fight both during a marriage and when a separation or divorce happens. A prenup explains how finances will be handled during the marriage and also explains any financial compensation for a spouse if a divorce happens.
  • Protect both spouses from debts. Each spouse can keep their separate financial obligations. The agreement can also explain who will take on specific marital debts.
  • Protect your personal property rights. This includes business interests, retirement accounts, investment accounts, bank accounts, real estate, and personal property that you may want to keep as your own if you go through a divorce.
  • Outline how children from a previous marriage will inherit in the event of death. In most states, the legal spouse will inherit at least 50% of an estate unless a Last Will and Testament is found. A prenuptial agreement can help you protect minor or adult children that you have from a previous relationship.
  • Reduces the cost and time of divorce. Divorce isn’t cheap. The longer the process continues, the more expensive (and ugly) it tends to become. A prenuptial agreement reduces the cost and time of the divorce process because it explains how the couple has agreed to proceed.

Of course, like with any sort of legal document and major life decision, there are also drawbacks to using a prenuptial agreement:

  • If you sign a prenup, you may not receive part of your spouse’s estate or inheritance. You may be entitled to some of it, but you may not get what you want.
  • You may not be entitled to an ownership interest in a business that you helped with. Maybe you helped by bringing in new clients or by improving certain business processes. Maybe your contribution was to take care of the home and children so that your spouse could focus on the business. Regardless of how you contributed, signing a prenup could mean that you do not receive any ownership interest of the business if you get a divorce.
  • Prenuptial agreements cannot cover every likely financial problem that could arise. Because of this, a prenup could actually make things much harder to comb through and resolve.
  • Your state court may not uphold the agreement.

Before you sign a prenuptial agreement, you should seek legal advice from your own attorney (not an attorney that works with or for your future spouse) to determine whether the agreement is valid, how it may benefit you, and how it could be harmful in the long run. Ultimately, only you can decide whether you should enter into the agreement.

Legal Considerations

There wouldn’t be a point for you to enter into a prenuptial agreement that isn’t valid. So, let’s talk about what you need to do to make your agreement legally binding. A prenuptial agreement must:

  • Be in writing.
  • Be signed by both parties of their own free will. They cannot be under duress or be pressured into signing the prenup.
  • Be presented with full disclosure.
  • Be fair and reasonable.
  • Be signed by both parties before a witness and a notary.

Same Sex Couples

Same sex couples can also benefit from using a prenuptial agreement. In 2015, the Supreme Court ruling on Obergefell v. Hodges legalized same sex marriage throughout the United States.

Can a Prenuptial Agreement Be Voided?

Yes, a prenuptial agreement may be voided. If it doesn’t comply with the governing laws of the state where it was written and signed, it may be voided. It may also be voided if it does not include one of requirements discussed above under Legal Considerations.

It’s extremely important that the agreement is considered fair in the eyes of the court. If it isn’t considered fair, the court may toss out the agreement. The court will look at whether each spouse has the ability to support themselves, the objective each spouse had when entering the prenup, the amount of property each spouse owns, the income of each spouse, family obligations, earning capacity for each spouse, the future needs of each spouse, the occupation of both parties, the expected contribution to the relationship, and the age and health (both physical and mental) of each party.  

Can You Sign a Prenup Agreement After the Wedding?

Yes, it can be signed after the wedding. A prenup can actually be created and signed at any point during a marriage. However, it is generally done before a wedding happens because everyone is happy with the relationship.  If an agreement is signed after the couple is married, it would be called a postnuptial agreement.

Limitations of Premarital Agreements

Like any other sort of contract, there are limitations to a prenup. First and foremost, limitations may be imposed by state or federal law. Your premarital agreement should be reviewed by a lawyer to ensure that it complies with the laws in your state. The most important things that your state law may forbid include:

  • Child custody and child support of mutual children. The court will look at what is in the best interest of the children. It is likely that this will need to be handled during a child custody hearing and / or through the divorce settlement process.
  • Waiving spousal support. You can certainly mention it in the agreement, but the court may disregard it if they feel that waiving spousal support puts the spouse who would receive it at an extreme disadvantage.
  • Monetary incentives for divorce. Most judges will not enforce a premarital agreement if there is a monetary incentive for divorce.
  • Divisions that do not involve money or other assets. A premarital agreement is not the place to discuss how holidays will be spent with extended family for the couple of for any mutual children. Visitation and custody is addressed through a separate document and / or hearing.
  • It appears the agreement was signed under duress. Contracts are not legally binding if they are signed under duress or undue influence.

Sample Prenuptial Agreement

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Sample Prenuptial Agreement

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