Prenuptial Agreement Sample Form and 5 Mistakes to Avoid
Prenuptial agreements don't just lay out the financial plan for your marriage in legal terms -- they also involve honest communication about your relationship and future. That's why we've consulted Sandra L. Schpoont, family and matrimonial law attorney and partner at Schpoont & Cavallo LLP, and Robert Wallack, celebrity divorce attorney and founder of The Wallack Firm, specializing in matrimonial and family law matters, to help break down a sample prenuptial agreement form's jargon and tell us the five biggest mistakes couples make. But before we jump in, what exactly is a prenup?
"A prenup is an agreement that is entered into by a future married couple that lays out certain financial obligations and terms that the parties will abide by during the marriage and in the event of a divorce," Wallack says.
Sounds pretty strict, and frankly, a little scary, right? It doesn't have to be -- if you can avoid the mistakes below.
Mistake 1: You don't talk about it because it's not romantic (not to mention, it's awkward).
Don't feel like you have to tiptoe around the idea of a prenup just because it's not as fun as discussing your European honeymoon. Long after your wedding is over and big life events happen, you may regret not talking about it earlier on.
"A lot of people don't like to talk about prenups," Wallack says. "They feel it's not romantic, so they're afraid to have the conversation. But a big mistake is not having the conversation early enough. It should be spoken about early and often. This is not an issue that you want to be dealing with on the eve of your wedding." He also advises to have your prenup signed six months before you get married.
Schpoont adds that it's important to be open about your finances. "Couples will communicate about all sorts of things, like religion and children, so it's important to also discuss how they want to handle finances during their marriage," she says. "Frankly, the people who I see work out the best are people who communicate. Prenups aren't romantic, but it's a very important discussion to have. It's being smart with your money. Protect yourself."
Mistake 2: You have the same lawyer.
This might sound like an odd one, but the basic idea behind this tip is you want to make sure both parties feel as comfortable as possible with the prenup parameters. If you have the same lawyer, that may be difficult to accomplish.
"The goal should be to have an agreement that's reasonable, fair and enforceable to both parties," Wallack says.
Mistake 3: You let your emotions get in the way of negotiating.
If you get upset while discussing, take a few weeks to communicate and think clearly about what's best for you and your partner. Going to a premarital counselor together could also help with issues that you're having about the prenup and any other prewedding matters too, like children, religion and family issues.
"Just like a romantic partnership, a marriage is a financial partnership," Wallack says. "A prenuptial agreement is a business transaction within your marriage, so just like any other financial discussion, try to put your emotions aside and think clearly."
Mistake 4: You reach an agreement quickly just to end the discussion.
If you're not comfortable signing a prenup for whatever reason, don't. You don't want to make it something you know you'll regret later. You shouldn't agree to it just to end an unpleasant discussion, or because your or your partner's parents want you to. That will likely lead to bigger problems down the road, and you should make a choice you're both 100 percent comfortable with.
Mistake 5: You continue to think about the prenup after it's signed.
After careful consideration and communication with your partner, sign the prenup and go on with your life.
"After they sign the prenup, I always tell my clients to put it in a drawer and forget about it," Wallack says. "Focus on the happiness of your engagement and marriage, and hope you never have to open the drawer."
What are some legal terms I can expect in a prenup?
Legal jargon can be tricky to navigate, so here are five phrases that can help you better understand prenups.
Separate property assets and liabilities: What you bring into the marriage, not what you acquire during marriage (that's marital property, below).
Operative event, separation event or termination: The triggering event that puts the prenup terms into action -- usually filing for divorce, moving out or sending an intent to divorce.
Marital property: Property that is earned or acquired during the marriage.
Separate property: Property that belongs to one of the parties prior to the marriage or after the divorce.
Spousal support or maintenance: When one party gives financial support to the other after a divorce. If one spouse gave up his or her career to stay home and take care of a child, the spousal support would mean he or she wouldn't immediately have to enter the workforce.
Sunset clause: A clause within a prenup that states when that agreement is no longer valid. Or it can define how much a spouse will receive depending on how many years they've been married. If the couple has children, the spouse may receive more money. (Remember that Sex and the City episode where Charlotte and Trey's prenup stated that Charlotte would receive more money if she had a boy than if she had a girl? That was totally a sunset clause.)
What does a prenuptial agreement sample form look like?
Below, see a prenuptial agreement sample for New York that Schpoont provided for us. It doesn't include every consideration and clause (since those depend on each couple's unique situations), but it's a starting point of what a basic prenup looks like. And since each state has different laws regarding divorce, we recommend that you consult an attorney in your state for your specific proceedings.
A G R E E M E N T:
AGREEMENT made this 11th day of September, 2014, between W ("W"), (Social Security No. ), residing at ___________________ and A ("A"), (Social Security No. ), residing at ___________________; (sometimes W and A are referred to as the "Parties")
W I T N E S E T H:
WHEREAS, a marriage is contemplated by W and A; and
WHEREAS, the Parties wish to define and determine their respective rights and obligations with respect to his or her own property and in the property of the other in the event of a dissolution of their marriage regardless of whether their property rights are to be governed by the laws of the State of New York or any other domestic or foreign jurisdiction; and.
WHEREAS, the Parties, to the extent as set forth herein, wish to relinquish any and all rights that either of them may have in the other's separate property as specifically set forth and defined herein, whether acquired prior or subsequent to the marriage; and
WHEREAS the Parties hereto have had the opportunity to fully, separately and independently be apprised and advised of their respective legal rights, remedies, privileges and obligations that but for this Agreement, will arise out of the marital relationship or otherwise, by counsel of their own choice and selection; and
WHEREAS, the Parties each warrant and represent to the other that they and each of them, fully understand all the terms, covenants, conditions, provisions and obligations incumbent upon each of them by virtue of this Agreement to be performed or contemplated by each of them hereunder, and each believes the same to be fair, just, reasonable and to his or her respective best interests.
NOW, THEREFORE, in consideration of the premises and of the covenants, promises and waivers contained herein, the Parties mutually agree as follows:
- ARTICLE I
This Agreement is contingent upon the Parties' contemplated marriage. In the event the marriage does not occur, then this Agreement shall be null and void and of no force or effect.
- ARTICLE II
The Parties agree that the Preamble is incorporated herein by reference with the same force and effect as if fully set forth herein at length.
A. The following shall constitute the Parties' Separate Property:
- 1. The property listed on Schedule A as A's property and on Schedule B as W's property, which schedules are annexed hereto and made part hereof.
- 2. All property defined as Separate Property under the Domestic Relations Law of the State of New York, Section 236(B)(1)(d), including property acquired prior to the marriage or by bequest, devise, descent or gifts from third Parties or interspousal gifts.
- 3. Compensation (damages) for personal injury, regardless of when and how suffered, including for pain and suffering, disability, disfigurement, lost wages and earning capacity, and punitive damages.
- 4. Property acquired after a Termination Event as defined in Article V herein.
- 5. All property purchased with or exchanged for Separate Property shall remain Separate Property.
- 6. The appreciation in value, income and profits derived from Separate Property, whether by way of sale, exchange, investment, reinvestment or otherwise shall be and remain Separate Property regardless of the "active" or "passive" nature of said Separate Property and regardless or any direct or indirect contribution or effort of the other Party to the maintenance or appreciation of said Separate Property. Joint use of Separate Property or use of Marital Property to maintain Separate Property shall not give rise to joint ownership of such Separate Property or convert it to Marital Property unless such property is placed in joint names or the Parties agree in a writing executed with the same formality as this Agreement. Separate Property used to acquire jointly-owned property will be returned and credited to the Party or Parties that contributed to the purchase of the jointly-owned property, upon a sale of said property or upon the occurrence of a Termination Event as defined below.
- 6.1 With respect to premises ________________, which apartment is A's separate property, the Parties agree that if apartment ____ is sold and a new apartment is purchased and title is taken in A's name alone, or with W jointly or with any other person or person ("New Home"), New Home, together with improvements, shall be A's Separate Property. Thereafter, if New Home is sold and the Parties purchase a subsequent home (apartment or house) and use the proceeds of the sale of New Home to purchase any other future residence(s) in which title is take in joint names or as tenants by the entirety, upon a "Termination Event", A shall be entitled to the return of the proceeds of sale of New Home, minus any monetary contributions from W. The difference between the proceeds of sale of the subsequently acquired apartment or home and of New Home, if any, shall be shared fifty (50%) percent to W and fifty (50%) percent to A.
- 6.2 The Parties acknowledge and agree that A owns fifty-one (51%) percent of his business which is known as ________________ LLC ("________________"). ________________ is located at________________. A's ownership interest in ________________ is his separate property and W acknowledges it as such separate property. In the event that A acquires additional stock in ________________ during the course of the marriage and prior to a Termination Event by purchase, gift or inheritance or if A purchases said stock with funds belonging to ________________, his interest in ________________ or personal funds he acquired before or during the marriage, A's increased ownership of ________________ shall be and remain A's separate property.
- 7. Any and all retirement accounts, including but not limited to, pensions, 401(k) and IRA accounts, only to the extent of the value in such accounts obtained before the marriage (the "Pre-Marriage Value") and the subsequent appreciation in value, if any, on such Pre-Marriage Value due to passive market forces.
- 8. If the Parties co-mingle any of their Separate Property such Separate Property shall not become Marital Property unless the Parties agree in writing that it become Marital Property or they place the co-mingled property in joint names or in a joint account.
- 9. The Parties agree that under no circumstances shall their Separate Property be considered Marital Property or community property or quasi-community property or otherwise be subject to any claim or right of the other in the event of a Termination Event herein, but shall remain the Parties' Separate Property, notwithstanding any contrary provision of the law of any jurisdiction. Each of them shall own, hold and freely dispose of their Separate Property, wherever it may be situated and whether it is now owned by him or her or may hereafter be acquired by him or her, free from all rights of the other therein under the laws of any jurisdiction. Each of them hereby waives, renounces and releases any and all rights which he or she may have under the laws of any jurisdiction in and to the other's Separate Property in the event of a Termination Event, including, without limitation, rights to Marital Property, equitable distribution, a distributive share, community property, quasi-community property, or any other rights, whether they be vested, contingent or inchoate.
- ARTICLE IV
- MARITAL PROPERTY
- A. The following shall constitute the Parties' Marital Property:
- 1. All property acquired during the marriage until the occurrence of a Termination Event that is not Separate Property as set forth in Article III above.
- 2. Except as provided for in Article III above, all property acquired by the Parties after the marriage and prior to the occurrence of a Termination Event whether said property is, real, personal or mixed, and wherever situated.
- 3. Except as otherwise provided herein, the voluntary contribution of Separate Property to acquire property in joint names with right of survivorship or as tenants by the entirety.
- 4. All property designated by the Parties as Marital Property in a written agreement, executed and acknowledged by the Parties with the same formality as required to conform with Section 236(B)(3) of the New York State Domestic Relations Law.
- ARTICLE V
A. Termination Event under this Agreement is defined to be the soonest occurrence of the following events:
- 1.The date on which a Party provides the other Party with written notice that he or she intends to dissolve the marriage. Said notice shall be delivered by United States Postal Service by registered or certified mail, return, receipt requested or overnight courier with proof of delivery thereon.
- 2.The commencement of an action for divorce, separation or annulment.
- 3.The execution of a written separation agreement, executed in compliance with Section 236)B)(3) of the New York State Domestic Relations Law.
- ARTICLE VI
- RIGHTS OF THE PARTIES UPON THE
- OCCURRENCE OF A TERMINATION EVENT
A. In the event of a Termination Event:
- 1. The marital home shall be placed on the market for sale within one year from the date of the Termination Event and the net proceeds of the sale shall be distributed in accordance with the terms of this Agreement. W has the right to remain in the marital residence up to one (1) year following a Termination Event.
- 2. Each Party shall retain his or her Separate Property, and the other Party agrees not to make any claim in or to such property. Each of the Parties hereby waives, releases and renounces (notwithstanding any contrary provision of the law of any jurisdiction) any right to or interest in the other Party's Separate Property including, without limitation, an equitable distribution, a distributive share, or any other portion thereof or interest therein, whether as Marital Property, community property, quasi-community property or otherwise.
- 3. W shall be entitled to Maintenance in accordance with Section 236)B)(3) of the New York State Domestic Relations Law.
- 4. Except as otherwise provided in this Agreement, all Martial Property as defined in Article IV of this Agreement, shall be divided between the Parties in accordance with the Domestic Relations Law of the State of New York in accordance with Sec. 236 B as it is presently constituted. The date of the occurrence of a Termination Event, shall for all purposes constitute the valuation date.
- 5. If, within thirty (30) days following a Termination Event, the Parties cannot agree on the value or how to effectuate the distribution of any or all of their Marital Property, then each asset in dispute will be sold at arm's length to a third party and the net proceeds of the sale divided equally between the Parties. If the Parties cannot agree on the sale price of the property and/or the method of sale, then within sixty (60) days of a Termination Event, each Party shall choose a qualified broker or appraiser. Each broker or appraiser shall seek to reach agreement with the other as to the price and method of sale. If the two brokers or appraisers fail to agree within twenty (20) days of their appointment, the two brokers or appraisers shall choose a third broker or appraiser who shall sell the property for maximum price reasonably obtainable given the market conditions at the time of sale. The third broker's value or price will govern.
- 6. In the event that either Party shall die following the occurrence of a Termination Event, but prior to entry of a decree of dissolution of the marriage, Marital Property shall be divided between the surviving spouse and the deceased spouse's estate as set forth in this Agreement as if a decree of dissolution had been entered on the date of death of the deceased spouse.
- ARTICLE VII
DISCLOSURE OF ASSETS
Each Party confirms that he or she has received sufficient financial disclosure of the other Party's assets from the other Party and such other Party's attorneys, that the other Party offered to respond fully and directly to all questions such Party and such Party's attorneys might have concerning such financial information, that such Party regards such information and the information set forth on Schedules A and B attached hereto, as sufficient disclosure, both in form and substance, and that, upon the advice of such Party's independent counsel, such Party is fully aware of and understands all of the rights which he or she is surrendering or releasing pursuant to this Agreement. Each Party agrees that to the extent that any assets, income or liabilities have not been disclosed for any reason to either of them, knowledge of such additional assets or liabilities would not be relevant in their determination to enter into this Agreement and to be married, and shall be no bar to the enforcement of this Agreement or any provision hereof because their knowledge of the assets and liabilities which have been disclosed is sufficient basis for this Agreement.
- ARTICLE VIII
The Parties hereto agree that all questions arising under or with respect to this Agreement and its interpretation or enforceability shall be governed by the substantive laws of the State of New York (without considering or applying the conflicts of law principles of any state). The Parties agree that New York law shall govern the interpretation and enforceability of this Agreement regardless of where the Parties shall live from time to time during the marriage or at the time of its dissolution.
- ARTICLE IX
Each Party acknowledges that this Agreement is fair and equitable, that it is being entered into voluntarily and that it is not the result of any duress or undue influence. Each Party has read this Agreement prior to its execution, understands it and is fully aware of the rights that he or she is or may be releasing pursuant to the terms of this Agreement.
- ARTICLE X
ENTIRE UNDERSTANDING OF THE PARTIES
A. This Agreement sets forth the entire understanding of the Parties and supersedes all other agreements, written or oral, between the Parties, including, without limitation, any implied or other agreements arising in connection with any period of cohabitation. The Parties affirm that no agreements have been entered into between them prior to the date of this Agreement. Neither Party has relied upon any representation of the other Party except such as are specifically mentioned in this Agreement.
B. Each of the Parties acknowledges and confirms that both Parties actively participated equally in the negotiation of this Agreement, and should any ambiguities exist in this Agreement, the same shall not be constructed against the Party whose attorneys prepared the initial draft of this Agreement.
C. Neither Party shall make any application in or to any court or tribunal inconsistent with the provisions thereof and , in the event of a separation or divorce of the Parties or other dissolution of the Parties' marriage, the provisions hereof shall be incorporated but not merged in such divorce decree.
- ARTICLE XI
AMENDEMENT OR REVOCATION
This Agreement may not be amended or revoked except by an instrument in writing signed by both of the parties and acknowledged and witnessed with the same formalities of this Agreement, expressly modifying or revoking one or more or all of the provisions of this Agreement.
- ARTICLE XII
All of the provisions of this Agreement shall inure to the benefit of and be binding upon the Parties and their respective heirs, issue, next of kin, distributes, executors, administrators, legal and personal representatives, successors and assigns.
- ARTICLE XIII
In the event that any term, provision, clause, subparagraph, paragraph, subdivision, or section of this Agreement is declared illegal, void or unenforceable, it shall not affect or impair the other terms, provisions, clauses, subparagraphs, paragraphs, subdivisions or sections of this Agreement. The doctrine of severability shall be applied. The Parties do not intend, by this statement, to imply the illegality, voidness or unenforceability of any term, provision, clause, subparagraph, paragraph, subdivision or section of this Agreement.
- ARTICLE XIV
Each of the Parties without cost to the other, shall at any time, and from time to time, hereafter execute and deliver any and all further instruments and assurances and perform any act that the other party may reasonably request for the purpose of giving full force and effect to the provision of this Agreement.
- ARTICLE XV
LEGAL FEES AND INDEPENDENT COUNSEL
- 1. W declares that she has been represented by independent counsel in the negotiation and execution of this Agreement, having been represented by__________________________, and that she fully understands her legal rights and liabilities.
- 2. A declares that he has been represented by __________________________and that he fully understands his legal rights and obligations. Each Party represents that he has carefully read this Agreement and understands its provisions.
- 3. A agrees that he shall be responsible for W's legal feesincurred in connection with the negotiation, preparation and execution of thisAgreement.
- 4. If eitherParty contests the validity of this Agreement or any provision thereof, thatParty shall be responsible for the reasonable value of any legal servicesrendered on behalf of either Party by reason of the other Party'sunsuccessfully contesting the validity of this Agreement or any provisionhereof, whether such services arise out of court action or otherwise, and shallbe paid by the Party unsuccessfully contesting the validity of this Agreementor any provision hereof.
IN WITNESS WHEREOF, the Parties have hereunto set their respective hands and seals as of the day and year first above written.
Witness as to Witness as to
W : A:
STATE OF NEW YORK )
COUNTY OF NEW YORK )
On this_________________, before me, the undersigned, a Notary Public for said State, personally appeared W , personally known to be or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that her signature on the instrument, the individual, or person upon behalf of which the individual acted, executed the instrument.
STATE OF NEW YORK )
COUNTY OF NEW YORK )
On this ________________, before me, the undersigned, a Notary Public for said State, personally appeared A , personally known to be or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that his signature on the instrument, the individual, or person upon behalf of which the individual acted, executed the instrument.
And just another reminder from The Knot: We recommend that you consult an attorney in your state for your specific proceedings.