Sample Prenuptial Agreement

The following form is more a road map than an actual agreement. Many provisions will need to be specifically tailored to your situation, and some of the alternative provisions provided here might not even be allowed under your jurisdiction’s law. No one should ever attempt to draft a prenuptial agreement, or any agreement really, without first fully understanding the statutory and common law of your particular state.

PREMARITAL AGREEMENT

THIS AGREEMENT, made at The Hill, on the ___ day of September, 20__, by and between JACK (hereinafter referred to as “JACK”) and JILL (hereinafter referred to as “JILL”), collectively referred to herein as the “parties.” The parties hereto contemplate entering into marriage, and in anticipation of said marriage, the parties have reached this Agreement, and stipulate and recite that:

A. JILL has been married before, and has three children from her prior marriages, HUEY, born March 10, 20__, DUEY, born April 5, 20__, and LOUIE, born January 18, 20__. JACK has been married before, and has three children from that marriage, ZEPPO, born September 15, 20__, CHICO, born December 30, 20__ and GROUCHO, born May 30, 20__. Each of the parties acknowledges that Jack and Jill have obligations imposed upon them by the judgments dissolving their prior marriages, including the obligations to support their children. Jack has disclosed those obligations to Jill, Jill has disclosed those obligations to Jack, and each are entering the marriage fully aware of the terms and provisions of each other’s prior judgments for dissolution of marriage. Jill has also disclosed to Jack that she has certain entitlements arising out of a marital settlement agreement between her and her ex-husband Humpty, which agreement was incorporated into a judgment for dissolution of marriage entered January 2, 20__, in the circuit court of Oz.

B. Each of the parties acknowledge their prior relationships and it is their intention that their marriage shall not, in any way, change their existing legal rights in the personal and real property of each that they now own and possess.

C. The parties acknowledge that they have adequate knowledge of the property and financial obligations of the other party. Each party owns personal property, and Jack owns real and personal property, the full nature and value of which has been disclosed to the other party, and which is set forth in Schedule A that is attached hereto and incorporated herein. Each party acknowledges and agrees that they have each received a fair and reasonable disclosure of the property and financial obligations of the other party, and each party hereby knowingly and voluntarily waives any rights to disclosure of the property or financial obligations of the other beyond the disclosure provided.

D. Each party is fully aware that if one of them predeceases the other while the marriage is still in effect, the present laws of the State of __________ would provide the surviving party with certain marital property rights. Specifically, the present laws of the State of __________ would entitle a surviving party to one-half (1/2) of the net estate of the deceased party if the deceased party died intestate or one-third (1/3rd) (these percentages vary from state to state) if the surviving party exercised the statutory right to renounce the spouse’s Will. However, each party desires to release any and all marital property rights in property now owned by the other party.

E. Each party has carefully studied this Agreement and has fully considered their respective rights and obligations hereunder, and the consequences of entering into this Agreement.

F. The parties acknowledge that Attorney __________ of the Law Firm of ___________has prepared this Agreement, and that said Attorney represents Jill. Jill further represents that she has had full and independent counsel from Attorney _____________ with respect to the subject matter of this Agreement, and that Attorney Clarence Darrow has not provided her with any advice or counsel in connection therewith. Jack acknowledges that Attorney Clarence Darrow of Darrow & Associates, P.C. has represented him in connection with the negotiation and execution of this Agreement. He further represents that he has had full and independent counsel from Attorney Clarence Darrow with respect to the subject matter of this Agreement, and that Attorney _____________ has not provided him with any advice or counsel in connection therewith.

G. (Bad, inadvisable, always to be avoided, and possibly illegal in some states) The parties acknowledge that Attorney _____________ of the Law Firm of _________________ has prepared this Agreement, and that said Attorney represents Jack. Jill acknowledges that she has been informed of her right to counsel and that she should have independent counsel review the terms of this agreement, discuss them with her, and advise her as to her options. Jill further represents that she has had full and complete disclosure from Jack of all of Jack’s income, assets, debts and expenses, that she is fully cognizant of and conversant with same, and that she, similarly has made full and complete disclosure to Jack of her income, assets, debts and expenses. Jill, knowingly, as her free and voluntary act, and without fraud, coercion or duress, waives her right to counsel and accepts the disclosures made by Jack as to his income, assets, debts and expenses, and waives her right to further disclosure. Jill finally acknowledges that Attorney __________________ has not provided her with any advice or counsel in connection therewith, nor has he or any other person made any oral representations concerning the terms and provisions of this agreement or their legal impact.

NOW, THEREFORE, in consideration of the mutual promises herein contained, and of the marriage about to be entered into, the parties agree as follows:

1. Jill hereby waives, discharges and releases any right, title and interest whatsoever that she may acquire in the property or estate of Jack, listed in Schedule A, at any time hereafter by reason of the marriage.

2. Jack hereby waives, discharges and releases any right, title and interest whatsoever that he may acquire in the property or estate of Jill, listed in Schedule A, at any time hereafter by reason of the marriage.

3. Each party waives, discharges and releases any and all claims and rights that he or she may acquire by reason of the marriage:

(a) to share in the estate of the other party upon the latter’s death, whether by way of dower, widow’s allowance, statutory allowance or distribution in intestacy; and

(b) to elect to take against any Last Will & Testament or Codicil of the other party; and

(c) to challenge by legal claim or action of any kind the terms and provisions of an inter vivos trust established by the other during his or her lifetime.

This provision shall serve as a mutual waiver of the right of election in accordance with the requirements of the laws of the State of _____________. Nothing herein contained shall be deemed to constitute a waiver by either party of any bequest or legacy that may be left to him or her by any Will, Codicil or Trust of the other. However, the parties acknowledge that no representations or promises of any kind whatsoever have been made by either of them to the other with respect to any such bequest or legacy. Each party reserves for himself or herself the right to execute a Will, Codicil, Trust or other instrument, disposing of or distributing his or her assets in whatever fashion he or she might see fit.

Note: If you are one of the growing numbers of elderly folks who marry late in life after losing your spouse, your family law attorney will likely need to pay greater attention to this clause, which effectively waives spousal rights upon death. A careful examination should be made of what provisions are agreed upon for support of the surviving spouse, and how the estate is to be divided between the children of prior marriages and the “new spouse.” These concerns are more properly the subject of an examination of elder law, not family law, but this caveat is included to alert you to the possibility of conflict between provisions related to a divorce, and provisions governing a late in life remarriage situation.

4. The property that the parties now own in their own names and that was acquired by them prior to their contemplated marriage, and that is listed in Schedule A attached hereto, shall remain their separate property subsequent to the date of their marriage, and in the event of any termination of the marriage by death, divorce or dissolution of marriage, such property, and the appreciation in said property, or property acquired in exchange for said property, shall remain the property of the respective parties, free of any claim of the other, except as otherwise provided herein. The parties agree that in the event of the filing of a petition for dissolution of their marriage, or a petition for legal separation, or a petition for declaration of invalidity within seven (7) years of the date of the marriage, wedding gifts of personal property (exclusive of cash) received by the parties shall be divided between them so that each party receives the gifts to the parties given by that party’s family or friends.

5. Each party reserves to himself or herself the right to add money or assets to the bank accounts, investment accounts, IRAs, retirement accounts, 401(k), and profit sharing accounts listed in their respective names on Schedule A attached hereto after the parties’ marriage. These sums may, but are not required to, come from the parties’ post marriage earnings from their respective employment. In the event of any termination of the marriage by death, divorce or dissolution of marriage, any such money or assets added to the property on Schedule A, and the appreciation in said money or assets, or property, money or assets acquired in exchange for said money or assets added to the bank accounts, investment accounts, IRAs, retirement, 401(k), and profit sharing accounts listed in their respective names on Schedule A attached hereto, shall also remain the property of the respective parties, as contemplated by Paragraph 4 above, free of any claim of the other, except as otherwise specifically provided herein.

6. The parties acknowledge that the waivers set forth in paragraphs 4 and 5 above are meant to apply to, and are intended by the parties to constitute waivers in the following pension, profit-sharing, savings and investment, and employee benefit plans: (Insert specific plans from Schedule A). The parties also acknowledge that they have been advised that each of the foregoing plans is, or might be, a “qualified plan” as that term is defined under the federal law known as “ERISA.” As a result, following their contemplated marriage, each party must execute a specific waiver of his or her interest in the other party’s plans as described in this paragraph, in order to implement and render valid, under ERISA and the Internal Revenue Code, the waiver contemplated by this paragraph, and each party agrees to do so promptly upon presentation of any such waiver by the other party.

7. The parties further acknowledge that the waiver to be executed by them as provided for in paragraph 6 above must be executed after their marriage because they are not, at the time of the execution of this agreement, spouses. They also acknowledge that the waiver to be executed by them must, in addition to any other requirements established by the plan administrator(s) of the various plans, explain the effect of the waiver to the party waiving his or her interest, designate a specific beneficiary in the event of the plan participant’s death, be witnessed by a plan representative or notary public, and approved by the plan administrator. Each party shall execute any documents required by the plan administrator(s) of any pension, profit-sharing, savings or investment plan to effectuate the waivers contemplated by this Agreement.

8. It is not the parties’ intention to create a marital estate, but rather to maintain separate and distinct economic identities following their marriage. However, any property hereafter acquired that is held or owned in the names of the parties hereto as joint tenants with a right of survivorship, or which is in the name of either of them as Trustee for the benefit of the other, or which is payable to either of them as co-owner, shall, upon termination of the marriage by divorce or dissolution of marriage, be divided equally between the parties, or upon the death of one of the parties, pass and be taken by the other as survivor or beneficiary. Notwithstanding the foregoing, if such property is purchased with separate funds of either party, then upon the termination of their marriage by divorce or dissolution of marriage, the property shall be awarded to that spouse who provided the funds for said purchase, up to the extent of their contribution.

9/10. (alternative 1). In the event the parties separate or a petition for relief under the Marriage and Dissolution of Marriage Act or any successor act is filed, husband shall pay to wife the sum of _____________________ DOLLARS ($________) annually, for a number of years equal to one-half of the years of the marriage, prorated monthly, as and for maintenance. Except for these payments, each party understands and agrees to waive, relinquish and release the other from any duty or obligation to pay maintenance (formerly “alimony”) or spousal support to the other in any fashion or manner whatsoever, which duty or obligation to pay maintenance or spousal support to the other party may otherwise have arisen but for this Agreement, and no claim or demand for such maintenance or spousal support shall be made, now or in the future. The parties’ waiver contained in this paragraph shall not apply to any obligation to support a child of the parties. The parties waiver contained in this paragraph shall include and constitute a waiver of the right to seek temporary maintenance, and the right to seek attorney’s fees and costs from the other in the event of a legal separation, dissolution of the parties’ marriage or declaration of invalidity, including, but not limited to, interim, temporary, and prospective attorney’s fees, and/or a contribution to his or her fees as defined in or contemplated by (insert statutory authority from your state) or such successor statutes as may hereafter be enacted.

9/10. (alternative 2). The parties represent that each of them is entering into the marriage financially independent and self-sufficient. In the event the parties separate or a petition is filed seeking relief under the Marriage and Dissolution of Marriage Act or any successor act, each party understands and agrees to waive, relinquish and release the other from any duty or obligation to pay maintenance (formerly “alimony”) or spousal support to the other in any fashion or manner whatsoever, which duty or obligation to pay maintenance or spousal support to the other party may otherwise have arisen but for this Agreement, and no claim or demand for such maintenance or spousal support shall be made, now or in the future. The parties’ waiver contained in this paragraph shall not apply to any obligation to support a child who is the biological child of both of the parties. The parties waiver contained in paragraph 9/10 above shall include and constitute a waiver of the right to seek temporary maintenance, and the right to seek attorney’s fees and costs from the other in the event of a legal separation, declaration of invalidity or dissolution of the parties’ marriage, including, but not limited to, interim, temporary, and prospective attorney’s fees, and/or a contribution to his or her fees, all as defined in or contemplated by (insert statutory authority from your state) or such successor statutes as may hereafter be enacted.

11. The parties further agree that neither shall have any right or obligation to contribute to the payment of child support for a child or children of the other party, or otherwise be legally obligated to make any payments for, or on behalf of, a child or the children of the other party. Neither party shall have any obligation to pay expenses on behalf of the other party so as to enable or assist that party in paying child support or any other obligation imposed upon a party for the support or maintenance of a child or children of the other party. Child support (maintenance, alimony, spousal support) received by a party shall be and remain the sole and separate property of the party receiving same, and the other party shall have no claim or interest in same. Should a party receiving (child support, maintenance, alimony, spousal support) contribute same to the payment of any joint debt or obligation, or any debt or obligation of the other party, or towards the acquisition of any property, real or personal, the contributing party (shall/shall not) be entitled to a return of all such contributions in the event of the termination of the marriage by legal separation, declaration of invalidity or dissolution.

12. Income earned by a party during the course of the parties’ marriage, from whatever source, shall not be deemed an asset of the marriage, or marital property as contemplated by (insert statutory authority from your state), but rather shall remain the sole and separate property of the party earning the income. The parties acknowledge that they have exchanged, and each has received, a copy of the other’s state and federal income tax returns for calendar years 20__, 20__ and 20__. Each is fully cognizant and informed of the income and debts of the other.

13. Each party shall be responsible for paying any debts, including child support or expenses for a child or children of the party, now existing or hereafter incurred in that party’s name, in a timely fashion, prior to delinquency. Neither party shall obligate the other on any new indebtedness without that party’s specific approval. Neither party shall sign or otherwise place the other party’s signature upon any debt instrument or obligation of any kind. Neither party shall incur debt or obligations, including child support and the obligation to make payment of expenses to or for the benefit of a child or children of the party, that that party is not capable of paying from his or her own separate assets or income, unless agreed upon by the other party and assumed by that party in writing.

13. (Alternative-parties constructing new residence, funded by one party). The parties acknowledge that they are currently constructing a home on The Hill in Wonderland, the construction financing for which has been obtained by, and is being provided through, _________________. The down payment on said residence is being provided by Jack, and shall be not less than ________________________ DOLLARS ($___________). The home will be owned by the parties as tenants by the entirety, and following completion of construction, the parties will obtain a mortgage loan sufficient to pay, in full, the current construction loan. The parties intend to occupy the residence as their marital residence. The parties agree that upon the sale of this residence, or the sale of any subsequent residence purchased by the parties utilizing proceeds from the sale of this residence, Jack will receive, prior to distribution of the sale proceeds between the parties, a portion of the sale proceeds calculated as follows:

The sum to be received by Jack hereunder shall be that sum arrived at by deducting from the appraised value (as established by the parties’ mortgage lender) of the Wonderland residence at the time of the parties’ initial occupancy of same, the original principal amount of the mortgage loan obtained by the parties to pay off the current construction loan’s final principal balance, but in no event shall the amount payable to husband ever exceed the sum of __________________________ DOLLARS ($___________). The balance of any net sales proceeds shall be divided equally between the parties

13. The parties acknowledge and stipulate that Jack works for the family business known as_________, a Delaware corporation. Although Jack is not currently a shareholder in said corporation, it is contemplated that he might become a shareholder subsequent to the parties’ marriage, by gift, inheritance or purchase. Any and all such stock of_________, and any right, title, office, directorship, or interest in, of whatever kind or nature, hereafter acquired by Jack, whether by appointment, assignment, election, gift, inheritance, purchase or otherwise, shall be and remain the sole and separate non-marital property of Jack. Jill hereby waives and releases, and acknowledges that she shall, by virtue of the parties’ marriage or otherwise, have no right, title, interest or claim in or to said stock, or any right, title, office, directorship, or interest of any kind or nature acquired by Jack, whenever, and in whatever fashion such interest is acquired.

The parties also agree that while Jack remains employed by_______, or any subsequently formed entity affiliated with or owned by_________, his salary shall constitute fair compensation for his personal efforts on behalf of ___________, or any subsequently formed entity affiliated with or owned by__________. The parties each waive any right to seek reimbursement to their marital or their non-marital estates for personal efforts contributed by to___________, or any subsequently formed entity affiliated with or owned by____________.

Note: The foregoing clause is designed to eliminate any claim by wife that husband’s family business did not adequately compensate him for the work performed by him during the marriage, which in some states can result in a claim by the marital estate for additional compensation.

13. The parties acknowledge that in addition to__________, Jack operates a construction business engaged in the construction of single family residences known as Jack’s Tracts. In connection with said business, Jack has bought and will continue to buy real estate, for the purposes of the continuation of the business activities of Jack’s Tracts. The structure of some of these business activities varies, and often includes individuals other than Jack. Due to the difficulty of identifying these business activities with specificity, wife understands and acknowledges that she will not ever aquire an interest in Jack’s Tracts, or any business activity of any kind or nature in which husband is now engaged or hereafter engages, unless wife is specifically given a title interest in any such business or business venture.

13. The parties acknowledge and stipulate that husband also owns all of the issued shares of stock of Jack’s Jax, an ________ corporation. Any and all stock of Jack’s Jax , and any right, title, office, directorship, or interest in Jack’s Jax, of whatever kind or nature, tangible or intangible, now held or hereafter acquired by Jack, whether by appointment, assignment, election, gift, inheritance, purchase, or otherwise, is and shall remain in perpetuity, the sole and separate property of Jack. Jill hereby waives and releases any and all rights, claims, or interests in and to said business, and acknowledges that she shall have no right, title, interest or claim, by way of reimbursement of contribution, claims for inadequate compensation of husband or otherwise, in or to said stock, directorship, or office, by virtue of the parties’ marriage or otherwise.

14. In the event of the filing of a petition for relief under the Marriage and Dissolution of Marriage Act, credit card or installment debt incurred through the use of a credit card in the name of a party shall remain the sole and separate obligation of that party, regardless of whether the other party was authorized to use the credit card or did use the credit card. In the event of the filing a petition for relief under the Marriage and Dissolution of Marriage Act, joint credit card or installment debt shall be allocated equally between the parties, and each party shall pay one half of any such joint debt. The terms of this paragraph shall govern and be applicable to any request by either party for relief pursuant to (insert statutory authority from your state).

15. If either party shall pledge, hypothecate, encumber, mortgage, or sell and convey, his or her present real or personal property, whether in whole or in part, the other party hereto shall, upon demand, join in any and every such debt instrument, promissory note, security agreement, mortgage or deed of conveyance, or in any other instrument that may be necessary or desirable to make such pledge, hypothecation, encumbrance, mortgage, sale or conveyance effectual; provided, however, that the party upon whom a demand is made to execute such debt instrument, promissory note, security agreement, or mortgage shall not be required to incur personal liability by reason of the execution of such instrument. The parties also agree to waive any claim for contribution to their marital or non-marital estates for any payments made by a party from any source whatsoever, in connection with any such pledge, hypothecation, encumbrance, promissory note, security agreement or mortgage.

16. The parties acknowledge and stipulate that Jack owns a business known as______________, a Delaware corporation. All stock and assets of_________, whether tangible or intangible, of whatever kind or nature, and any right, title, office, directorship, or interest in ____________, of whatever kind or nature, now owned or hereafter acquired by Jack, whether acquired by appointment, assignment, election, gift, inheritance, purchase or otherwise, shall be and remain the sole and separate non-marital property of Jack. Jill hereby waives and releases, and acknowledges that she, by virtue of the parties’ marriage or otherwise, shall have no right, title, interest or claim in or to said stock or assets, tangible or intangible, or any right, title, office, directorship, or interest of any kind or nature in _______________. The parties further acknowledge that Jill’s prior, current or future employment by __________, shall not vest Jill with any right, title, interest or claim in or to _____________ or said stock or assets, tangible or intangible, or any right, title, office, directorship, or interest of any kind or nature in ______________.

17. The parties also agree that while Jack remains employed by_______, or any subsequently formed entity affiliated with or owned by_________ or by Jack in some other fashion, his salary shall constitute fair compensation for her personal efforts on behalf of ___________, or any subsequently formed entity affiliated with or owned by__________, or by Jack. The parties each waive any right to seek reimbursement to their marital or their non-marital estates for personal efforts contributed by Jack to___________, or any subsequently formed entity affiliated with or owned by____________ or by Jack.

18. The parties acknowledge that in addition to__________, Jack will continue to create and operate businesses, which might or might not be affiliated with _________ or related to ______________. The structure of some of these business activities will vary, and could often include individuals other than Jack. Due to the difficulty of identifying these business activities with specificity, Jill understands and acknowledges that she will not ever acquire an interest in any business entity or activity of any kind or nature in which Jack is now engaged or hereafter engages, unless Jill is specifically given, in writing, a title interest in any such business or business venture. Jill hereby waives and releases any and all rights, claims, or interests in and to said business or businesses, and acknowledges that he shall have no right, title, interest or claim, by way of reimbursement of contribution, enhancement of value through personal efforts, and claims for inadequate compensation of Jack or otherwise, in or to said stock, directorship, or office, by virtue of the parties’ marriage or otherwise. Jill further waives all claims against_________, or any other entity owned by Jack or affiliated with ___________, for contributions of Jack’s personal efforts to ________ or any entity affiliated with ________ or owned by Jack. Jill also waives any claims for payment for services rendered by Jill to __________ or any affiliated entity, or any other entity owned by Jack, above and beyond the compensation actually paid to her for those services.

Note: This provision is an attempt to defeat any claims by wife that she is entitled to additional compensation for work she performed for husband’s business, and any claims that her efforts enhanced the value of the business.

19. As used in this Agreement, the word “property” means and includes money and any and every form of property, real and personal, and every contractual right and right of action or chose in action (except any right under this Agreement).

20. The parties intend and desire that this instrument shall be construed under, and its validity controlled by, the laws of ______________, regardless of whether they remain residents of the State of _____________, or move to any other jurisdiction.

21. This Agreement contains the entire understanding of Jack and Jill. No representations, warranties, promises, covenants or understandings, oral or otherwise, other than those expressly set forth herein, has been made by the parties.

22. This Agreement may be modified, amended or rescinded at any time after the marriage of the parties only by a subsequent written agreement between the parties. No oral or non-written modification, amendment, rescission or waiver, or attempts at same by either or both parties, shall have or be given any force upon or affect the operation, implementation and/or enforcement of the terms of this Agreement.

23. The provisions of this Agreement are severable. In the event, for any reason, any provision hereof shall be determined to be unenforceable, such unenforceability shall not affect the enforceability of any of the remaining provisions.

24. The parties acknowledge that they are entering into this agreement as their free and voluntary act, free of any fraud, coercion or duress.

25. This Agreement shall become effective when and if, and only when and if, the contemplated marriage between the parties is actually entered into. If the marriage is not entered into, this Agreement shall become wholly null and void. (Sunset provision) In the event the parties are married and reside together as husband and wife for a period in excess of twenty (20) years following the date of the marriage, the terms of this agreement, except those relating to previously owned assets of a party as set forth in paragraphs 1, 2 and 4 above, shall terminate and be of no force and effect.

IN WITNESS WHEREOF, the parties have hereunder set their hands at the place and on the date first above written.

__________________________
Jack
__________________________
Jill
Subscribed & Sworn to before me
this ___ day of __________, 20__.
Subscribed & Sworn to before me
this ___ day of __________, 20__.
__________________________
Notary Public
__________________________
Notary Public

Schedule A to Antenuptial Agreement
Between ______________________
List of Property Owned by the Parties as of the Date of the Agreement

Property Owned by Jill
[Itemize]
Property Owned by Jack
[Itemize]

__________________________ __________________________
Subscribed & Sworn to before me
this ___ day of __________, 20__.
Subscribed & Sworn to before me
this ___ day of __________, 20__.
__________________________
Notary Public
__________________________
Notary Public