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How should property acquired during the marriage be treated?
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PRENUPTIAL AGREEMENT
Date: February 10, 2026
This Prenuptial Agreement ("Agreement") is entered into by and between:
First Party: [First Party Name]
Address: [First Party Address]
AND
Second Party: [Second Party Name]
Address: [Second Party Address]
(each a "Party" and collectively the "Parties" or "Prospective Spouses")
RECITALS
WHEREAS, the Parties contemplate marriage to each other on or about [Wedding Date]; and
WHEREAS, each Party owns certain property and assets and may acquire additional property and assets in the future; and
WHEREAS, each Party desires to define their respective rights and obligations regarding property, finances, and spousal support in the event of divorce, separation, or death; and
WHEREAS, each Party has made a full and fair disclosure of their financial circumstances to the other Party; and
WHEREAS, each Party has had the opportunity to consult with independent legal counsel of their own choosing; and
WHEREAS, both Parties enter into this Agreement voluntarily and without coercion, duress, or undue influence;
NOW, THEREFORE, in consideration of the mutual promises herein and the forthcoming marriage, the Parties agree as follows:
ARTICLE 1: EFFECTIVE DATE AND GOVERNING LAW
1.1. This Agreement shall become effective upon the date of the Parties' marriage and shall remain in effect throughout the marriage unless modified or terminated in accordance with the terms herein.
1.2. This Agreement shall be governed by and construed in accordance with the laws of [Jurisdiction].
1.3. If the marriage does not take place, this Agreement shall be null and void.
ARTICLE 2: FINANCIAL DISCLOSURE
2.1. Each Party represents and warrants that they have provided the other Party with a complete and accurate disclosure of their financial condition, including all assets, liabilities, income, and expectations of gifts or inheritances.
2.2. Each Party acknowledges that they have had adequate time to review the other Party's financial disclosure and to ask questions.
2.3. Each Party acknowledges that they are entering into this Agreement with full knowledge of the other Party's financial circumstances and that this knowledge is sufficient for the purposes of this Agreement.
2.4. A summary of each Party's disclosed assets and liabilities is attached hereto as Exhibit A and incorporated by reference.
ARTICLE 3: SEPARATE PROPERTY
3.1. PRE-MARITAL PROPERTY: All property owned by either Party prior to the marriage ("Pre-Marital Property") shall remain the separate property of that Party. Pre-Marital Property includes, but is not limited to:
(a) Real estate;
(b) Bank accounts and financial investments;
(c) Personal property and vehicles;
(d) Retirement accounts and pensions;
(e) Intellectual property and royalties;
(f) Any appreciation or income derived from Pre-Marital Property.
3.2. Each Party shall maintain separate records and accounts for their Pre-Marital Property. Commingling of Pre-Marital Property with marital property shall not change the separate character of the original property.
3.3. GIFTS: Any gifts received by one Party from third parties during the marriage shall remain the separate property of the receiving Party.
ARTICLE 4: INHERITANCE PROTECTION
4.1. Any inheritance, bequest, or devise received by either Party, whether before or during the marriage, shall remain the sole and separate property of the receiving Party.
4.2. All income, appreciation, and proceeds from inherited property shall likewise remain separate property.
4.3. Commingling of inherited assets with joint marital funds shall not change the separate character of the inherited property, provided the inheriting Party can trace the original inheritance.
ARTICLE 5: MARITAL PROPERTY
5.1. Property acquired during the marriage shall remain the separate property of the Party who acquired it. Each Party shall retain sole ownership and control of all property acquired in their own name during the marriage, including income, investments, and real property.
5.2. Joint purchases made by both Parties with mutual consent and joint funds shall be considered jointly owned regardless of the classification above.
5.3. Each Party shall have the right to manage, control, and dispose of their separate property without the consent of the other Party.
ARTICLE 6: SPOUSAL SUPPORT
6.1. In the event of divorce, spousal support shall be determined in accordance with the applicable laws of the governing jurisdiction. This Agreement does not modify, limit, or waive either Party's rights to spousal support under applicable law.
6.2. This provision shall be enforceable to the maximum extent permitted by the laws of [Jurisdiction]. If any court determines that this spousal support provision is unconscionable or unenforceable, the court shall modify it to the minimum extent necessary to make it enforceable.
ARTICLE 7: DEBTS AND LIABILITIES
7.1. PRE-MARITAL DEBTS: All debts and liabilities incurred by either Party prior to the marriage shall remain the sole responsibility of the Party who incurred them. Neither Party shall be responsible for the other Party's pre-marital debts.
7.2. MARITAL DEBTS: Debts incurred during the marriage shall be allocated as follows:
(a) Joint debts incurred by mutual agreement for household or family purposes shall be shared equally;
(b) Debts incurred by one Party individually without the other Party's consent shall remain the sole responsibility of the incurring Party;
(c) Student loans, regardless of when incurred, shall remain the sole responsibility of the Party who incurred them.
7.3. Neither Party shall incur debt exceeding $5,000 on joint credit without the written consent of the other Party.
7.4. Each Party shall indemnify and hold harmless the other Party from any liability for debts that are their sole responsibility under this Agreement.
ARTICLE 8: PROPERTY DIVISION UPON DIVORCE
8.1. In the event of divorce or dissolution, each Party shall retain their separate property as defined in this Agreement.
8.2. Joint marital property, if any, shall be divided equitably between the Parties, with consideration given to each Party's contributions.
8.3. The marital home, if jointly owned, shall be handled as follows: (a) the Parties shall first attempt to reach mutual agreement; (b) if no agreement is reached within sixty (60) days, the home shall be sold and proceeds divided equally.
8.4. Personal property not otherwise addressed shall be divided by mutual agreement or, if necessary, by mediation.
ARTICLE 9: DEATH OF A SPOUSE
9.1. In the event of the death of either Party during the marriage, this Agreement shall not limit the surviving Party's right to an elective share, homestead rights, or family allowance as provided by the laws of [Jurisdiction].
9.2. Each Party retains the right to dispose of their separate property by will or trust as they see fit.
9.3. Each Party agrees to make reasonable provision for the surviving spouse in their estate plan, but this Agreement does not create an obligation to include the other Party as a beneficiary.
ARTICLE 10: VOLUNTARY EXECUTION
10.1. Each Party acknowledges that they are entering into this Agreement freely, voluntarily, and without coercion, duress, fraud, or undue influence.
10.2. Each Party has had the opportunity to retain and consult with independent legal counsel of their own choosing prior to signing this Agreement.
10.3. Each Party has read this Agreement in its entirety, understands its terms and consequences, and agrees to be bound by its provisions.
10.4. Each Party acknowledges that this Agreement is fair and reasonable at the time of execution and is not unconscionable.
ARTICLE 11: GENERAL PROVISIONS
11.1. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior discussions and agreements.
11.2. AMENDMENTS: This Agreement may only be modified by a written instrument signed by both Parties and notarized.
11.3. SEVERABILITY: If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
11.4. WAIVER: The failure of either Party to enforce any provision shall not constitute a waiver of that provision.
11.5. MEDIATION: Before initiating any legal proceedings related to this Agreement, the Parties agree to attempt resolution through mediation with a mutually agreed-upon mediator.
11.6. ATTORNEY'S FEES: In the event of litigation to enforce this Agreement, the prevailing Party shall be entitled to recover reasonable attorney's fees and costs.
11.7. COUNTERPARTS: This Agreement may be executed in counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the Parties have executed this Prenuptial Agreement as of the date first written above.
FIRST PARTY:
Signature: ____________________________
Name: [First Party Name]
Date: ____________________________
SECOND PARTY:
Signature: ____________________________
Name: [Second Party Name]
Date: ____________________________
ACKNOWLEDGMENT OF INDEPENDENT LEGAL COUNSEL
I, _________________________, attorney for [First Party], confirm that I have reviewed this Agreement with my client and advised them of their rights and obligations.
Attorney Signature: ____________________________
Bar Number: ____________________________
Date: ____________________________
I, _________________________, attorney for [Second Party], confirm that I have reviewed this Agreement with my client and advised them of their rights and obligations.
Attorney Signature: ____________________________
Bar Number: ____________________________
Date: ____________________________
NOTARY ACKNOWLEDGMENT
State of ____________________________
County of ____________________________
On this _____ day of _______________, 20___, before me personally appeared [First Party] and [Second Party], known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to this instrument, and acknowledged that they executed the same.
Notary Signature: ____________________________
Notary Name: ____________________________
My Commission Expires: ____________________________
[NOTARY SEAL]
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What is a Prenuptial Agreement?
A Prenuptial Agreement (also called a "prenup" or "premarital agreement") is a legal contract signed by two people before they get married. It defines how assets, debts, property, and spousal support will be handled during the marriage and in the event of divorce or death. Prenups are not just for the wealthy — they are practical financial planning tools for anyone entering a marriage with assets, debts, business interests, or children from a prior relationship.
Without a prenuptial agreement, state law determines how property is divided in a divorce. In community property states (like California and Texas), most assets acquired during marriage are split 50/50. In equitable distribution states (like New York and Florida), courts divide property "fairly" — which may not mean equally. A prenup lets you decide these matters yourselves rather than leaving them to a judge.
Key provisions in a Prenuptial Agreement
Defines what each party owned before the marriage and ensures it stays with the original owner in a divorce.
Determines how property acquired during the marriage will be classified — joint, separate, or a hybrid approach.
Can waive, limit, or define alimony terms — though courts may override provisions deemed unconscionable.
Protects each party from being responsible for the other's pre-marital debts (student loans, credit cards, etc.).
Community property vs. Equitable distribution states
| Approach | How Property is Divided | States |
|---|---|---|
| Community Property | 50/50 split of marital assets | CA, TX, AZ, NV, WA, WI, LA, NM, ID |
| Equitable Distribution | "Fair" division (not necessarily equal) | All other states (NY, FL, IL, PA, etc.) |
A prenuptial agreement allows couples to override these default rules and define their own property division terms.
Who should consider a Prenuptial Agreement?
- Business owners: Protect your business, its appreciation, and your partners' interests from division in a divorce.
- People with significant assets or debts: Clarify what's separate and what's shared to avoid disputes.
- Second marriages: Protect assets intended for children from a prior relationship or define inheritance terms.
- Couples with unequal incomes: Define fair financial expectations and avoid one party bearing disproportionate risk.
- People expecting an inheritance: Ensure inherited property remains separate and protected from division.
Frequently asked questions
Are prenuptial agreements enforceable?
Yes, in all 50 states. However, courts may refuse to enforce a prenup if: (1) it was signed under duress or coercion; (2) one party did not fully disclose their financial situation; (3) one party did not have independent legal counsel; (4) the terms are unconscionable (extremely unfair) at the time of enforcement. To maximize enforceability, both parties should have separate attorneys, sign well before the wedding, and provide complete financial disclosure.
When should I sign a prenup before the wedding?
Most attorneys recommend signing a prenup at least 30 days before the wedding, though earlier is better. Signing too close to the wedding can create a presumption of coercion or duress, which could make the agreement unenforceable. Give both parties enough time to review, negotiate, and consult with their own attorneys.
Can a prenup cover child custody and child support?
No. Courts will not enforce prenuptial provisions that attempt to determine child custody, visitation, or child support. These matters are always decided based on the best interests of the child at the time of divorce, regardless of any pre-existing agreement. A prenup can address property, debts, spousal support, and financial matters, but not children.
Can we modify or cancel a prenup after marriage?
Yes. A prenup can be modified or revoked at any time during the marriage, as long as both parties agree in writing. A postnuptial agreement (signed after marriage) can be used to update or replace a prenup. Some prenups include "sunset clauses" that automatically expire after a certain number of years.
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