What is a Prenuptial Agreement (Prenup)?

A Prenuptial Agreement, commonly called a prenup, is a domestic contract that you and your future spouse create before getting legally married . It’s important to note that you cannot make a prenup after marriage . A prenup sets out the current and future financial responsibilities of each partner if they separate , divorce , or when one partner dies. People use a prenup to clarify the property, assets, and debts that are separately owned or shared during and after marriage. This may be the case when each spouse believes they’ve worked hard to accumulate wealth before meeting their partner, and they want the division of property to be fair if the relationship ends. A Prenuptial Agreement is also known as a/an: Premarital Agreement Antenuptial Agreement Marriage Contract For unmarried couples who want to protect individual assets, a Cohabitation Agreement , also known as a Common-Law Partner Agreement, serves a similar purpose to a prenup.

What does a Prenuptial Agreement cover?

A Prenuptial Agreement generally covers how to divide an estate after a marriage ends by identifying shared and separate property. The terms covered in LawDepot’s Prenuptial Agreement template are as follows: 1. Party details Include the full names and home addresses of each spouse entering into the agreement. 2. Separate and shared assets Each spouse may specify the assets that they will retain ownership rights to in the event of a breakup. These assets are known as separate property . In most cases, the spouse with ownership rights keeps these assets if the relationship ends. However, a spouse may have to reimburse the other if the value of an asset increases during their marriage . For example, say you identify a sports car as a separate asset and the car increases in value during the years you’re married. A court may rule that your spouse is entitled to the dollar amount that the car increased in value, especially if they contributed to the asset’s appreciation. Any assets that you list as shared property in your prenup will be divided equally in the event of a breakup (unless the spouses agree otherwise). 3. Separate and joint debt If one spouse accumulated debt before the marriage, they can claim sole responsibility for repaying this debt in the prenup. You may wish to keep debts separate to avoid burdening each other with unpaid expenses. If you have joint debt, you may wish to specify how much each spouse is responsible for in the event of a breakup. Typically, joint debts are split evenly between partners. However, you can use a prenup to allocate more or less debt to one partner over the other. 4. Children A prenup cannot include terms regarding child custody, child visitation, or child support for existing or future children. However, if you have children, you should list them in your Prenuptial Agreement. This is because children can have rights (such as the right to inheritance) that can impact how courts enforce your prenup in the future. 5. Spousal support Addressing spousal support (also called alimony or spousal maintenance ) in your Prenuptial Agreement is optional. Consider the following factors when determining support payments: Which spouse will pay support to the other The specific amount to be paid The frequency of payments (e.g., weekly or monthly) The payment method (e.g., e-transfers) Any conditions on the support payments (e.g., a spouse is entitled to support payments if the marriage lasts for at least five years; support payments may end if there is a change in income) If you don’t specify a spousal support plan, courts will determine payments according to state and federal laws. They will also consider the varying circumstances at the time of the divorce. 6. Inheritance rights Once married, your spouse typically becomes entitled to half of your estate. However, you can use a prenup to limit their inheritance rights if you wish to distribute a certain amount to another party, such as other family members, children, or a charitable organization. Some people also choose to restrict their spouse’s inheritance if they believe the surviving spouse will be financially secure without it. Note that a probate court will typically uphold a Prenuptial Agreement, especially if the terms are consistent with terms in the deceased’s Last Will and Testament .

Why should I use a Prenuptial Agreement?

Some people may feel reluctant to sign a Prenuptial Agreement because of the stigma associated with it. However, you don’t need to look at this domestic contract as a relationship red flag. In fact, a notable benefit of creating a prenup is that it initiates an honest conversation about your financial situation before marriage. For instance, you might be surprised or offended to find that you’re partially responsible for paying off a large debt that your spouse kept hidden from you when you were engaged. There are many situations for a couple to create a Prenuptial Agreement, such as when: You have children from a previous relationship You have significant personal assets that you wish to keep separate You have sizeable investments in a business You want to avoid any conflict or confusion in the event of a divorce, separation, or the death of a spouse While a prenup protects the individual assets that a person worked hard to earn, it doesn’t mean that you won’t have shared assets as a couple . You can continue to build a life with your partner while using a prenup to protect both of your best interests. If you don’t create a Prenuptial Agreement and your relationship dissolves, courts will divide marital property according to your state’s laws.

Can a Prenuptial Agreement be voided?

When executed properly, a Prenuptial Agreement is a legally binding contract. However, a court may rule that the contract (or a part of it) is void if one party can prove that the agreement is unfair or illegal. For instance, a Prenuptial Agreement may be void or voidable if: There was a failure to disclose all assets There is evidence of fraud There is evidence of duress (i.e., an action that forces another person to comply with the agreement) or unfairness It was signed involuntarily It includes content that is illegal or against public policy It includes content that is perceived to promote divorce or separation To avoid arguments over unfairness, duress, or fraud, each party in the Prenuptial Agreement should seek independent legal advice . Getting your contract reviewed by a lawyer helps ensure its enforceability in the future.

Does a Prenup need to be notarized?

Prenuptial agreements normally do not require notarization. However, notarization helps to verify the validity of a document. As such, notarizing your prenup will help prove the document's authenticity and legitimacy if it is ever brought up in court. You and your spouse can notarize your prenup quickly by using an online notary .

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PRENUPTIAL AGREEMENT

THIS PRENUPTIAL AGREEMENT (the "Agreement") MADE ON THIS ________ day of ________________, ________

BETWEEN:

_______________________________

- AND -

_______________________________

of _________________________________________

BACKGROUND
This Agreement is made between _______________________________ and _______________________________ (collectively the "Parties" and individually a "Party") who are contemplating marriage each to the other.
The Parties wish to enter into this Agreement to provide for the status, ownership, and division of property between them, including future property owned or to be acquired by either or both of them.
The Parties further wish to affix their respective rights and liabilities that may result from this relationship.
The Parties recognize the possibility of unhappy differences that may arise between them. Accordingly, the Parties desire that the distribution of any property that either or both of them may own will be governed by the terms of this Agreement and, insofar as the statutory or case law permits, intend that any statutes that may apply to them, either by virtue of Federal or State legislation, will not apply to them.
The Parties acknowledge that they have been provided with a reasonable period of time to review this Agreement.
The Parties also acknowledge that they have had the opportunity to retain their own lawyer and to receive independent legal advice regarding the terms of this Agreement.
The Parties have disclosed to their satisfaction all assets and liabilities that each may have and voluntarily and expressly waive any other rights to disclosure of the property or financial obligations of each other beyond the disclosure provided.
Each Party agrees and affirms THAT:
1. The Parties did execute the Agreement voluntarily;
2. This Agreement was not unconscionable when it was executed;
3. Prior to execution of the Agreement, both Parties were provided a fair and reasonable disclosure of the property or financial obligations of the other Party;
4. They have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other Party; and
5. They entered into this Agreement freely and under no duress or undue influence on their decision by the other Party.
The Parties acknowledge that this Agreement will continue upon termination of marriage whether by death, divorce, or otherwise.

NOW THEREFORE in consideration of the upcoming marriage, and in consideration of the mutual promises and covenants contained in this Agreement, the Parties agree as follows:

PROPERTY
The Parties acknowledge that this Agreement will govern any determination of ownership of property that may occur in the event of the Parties separating, or upon the death of a Party.
Except as otherwise provided in this Agreement, all property will be treated as property owned solely by either one of the Parties (the "Separate Property"), with the property as is listed in the attached Schedules "A1" and "A2" considered Separate Property, except where:
1. it is Shared Property; or
2. there is proof of shared legal ownership.
Nothing in this Agreement will prevent or invalidate any gift, or transfer for value, from one Party to the other of present or future property.
Unless a Party can reasonably show that they solely own a piece of property, where either Party commingles jointly owned property with Separate Property, any commingled property will be presumed to be Shared Property.
DEBTS
The Parties acknowledge that this Agreement will govern any determination of responsibility of debts that may occur in the event of the Parties separating, or upon the death of a Party.
All jointly acquired or jointly held debts, however and whenever acquired, will remain the debts of and be owed by both Parties and will be treated as shared debts (the "Shared Debts").
Except as otherwise provided in this Agreement, all debts will be treated as debts owed solely by either one of the Parties (the "Separate Debts"), with the debts listed in the attached Schedules "B1" and "B2" considered Separate Debts, except where:
1. it is Shared Debt; or
2. there is proof of shared legal responsibility.
MATRIMONIAL PROPERTY RELEASE
The Parties covenant and agree that they are aware of the equitable distribution laws of the Commonwealth of Virginia, and that it is their intention that the equitable distribution laws will not apply to the status, ownership, interest and division of their property, either jointly or separately owned, nor to their future property, whether real or personal, and owned by either one or both of them, and the Parties further covenant and agree that it is their desire and intent by the terms of this Agreement to contract out of the equitable distribution laws of the Commonwealth of Virginia, and to make a full and final settlement of all matters of property, both real and personal, previously and presently owned by either of the Parties or to be acquired by either of the Parties in the future.
DOWER, CURTESY AND HOMESTEAD RELEASE
Each Party releases all dower, curtesy, and homestead rights under any statute of the Commonwealth of Virginia, or any other jurisdiction whatsoever, that, but for this agreement, each would have in and to property in the name of the other, or in their names jointly or as tenants in common.
SUPPORT
The Parties agree that the investment of time or labor with respect to personal service in the property of the other, or otherwise, will be deemed to have been made gratuitously, and without expectation or right of compensation unless agreed to the contrary in writing.
It is the intention of the Parties to forever release each other from any alimony or support obligations now and in the future no matter how their circumstances may change. They will not apply now or in the future under any Federal or State legislation for support. They each waive any rights they may have to proceed against the other under any law or statute for payments of alimony or support and rely upon the law of contract to govern in respect of this issue.
The Parties realize that their respective financial circumstances may be altered in the future by changes in their health, the cost of living, their employment, their marital status, the breakdown of their relationship, or otherwise. No such changes will give either Party the right to seek support under any legislation, Federal or State. It is understood by each Party that this Agreement represents a final disposition of all maintenance and support issues between them.
ESTATES AND TESTAMENTARY DISPOSITION
Except as otherwise provided in this Agreement, the Parties acknowledge that each has the absolute right to dispose of their estate by will without leaving any portion to the other, or to the heirs, executors, administrators, or assigns of the other.
Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
Except as otherwise provided in this Agreement, the Parties waive and release the other from any and all rights of every kind, nature, and description that each may acquire as spouse or surviving spouse in the property, assets, or estate of the other.
SEVERABILITY
Should any portion of this Agreement be held by a court of law to be invalid, unenforceable, or void, such holding will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the portion so held to be invalid, unenforceable, or void, will be deemed amended, reduced in scope, or otherwise stricken only to the extent required for purposes of validity and enforcement in the jurisdiction of such holding.
INTENTION OF THE PARTIES
Notwithstanding that the Parties acknowledge and agree that their circumstances at the execution of this Agreement may change for many reasons, including but without limiting the generality of the foregoing, the passage of years, it is nonetheless their intention to be bound strictly by the terms of this Agreement at all times.
DUTY OF GOOD FAITH
This Agreement creates a fiduciary relationship between the Parties in which each Party agrees to act with the utmost of good faith and fair dealing toward the other in all aspects of this Agreement.
FURTHER DOCUMENTATION
The Parties agree to provide and execute such further documentation as may be reasonably required to give full force and effect to each term of this Agreement.
TITLE/HEADINGS
The headings of this Agreement form no part of it, and will be deemed to have been inserted for convenience only.
ENUREMENT
This Agreement will be binding upon and will enure to the benefit of the Parties, their respective heirs, executors, administrators, and assigns.
GOVERNING LAW
The laws of the Commonwealth of Virginia will govern the interpretation of this Agreement, and the status, ownership, and division of property between the Parties wherever either or both of them may from time to time reside.
TERMINATION OR AMENDMENT
This Agreement may only be terminated or amended by the Parties in writing signed by both of them.
ENTIRE AGREEMENT
The Agreement constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes all prior communications, contracts, or agreements between these Parties with respect to the subject matter addressed in this Agreement, whether oral or written.

IN WITNESS WHEREOF the Parties have hereunto set their hands and seals on the ________ day of ________________, ________.

SIGNED, SEALED AND DELIVERED
In the presence of:

___________________________________
WITNESS
Printed Name: _______________________

____________________________________
FIRST PARTY
Printed Name: ________________________

___________________________________
WITNESS
Printed Name: _______________________

____________________________________
SECOND PARTY
Printed Name: ________________________

THE PARTIES HEREBY EXECUTE THIS AGREEMENT ON THE ________ DAY OF ________________, ________.

____________________________________
FIRST PARTY
Printed Name: ________________________

____________________________________
SECOND PARTY
Printed Name: ________________________

SCHEDULE "A1"

Separate Property of _______________________________:

___________________________________ owns no Separate Property.

SCHEDULE "A2"

Separate Property of _______________________________:

___________________________________ owns no Separate Property.

SCHEDULE "B1"

Separate Debt of _______________________________:

___________________________________ has no Separate Debt.

SCHEDULE "B2"

Separate Debt of _______________________________:

___________________________________ has no Separate Debt.

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE COMMONWEALTH OF VIRGINIA
COUNTY OF _________________

I, _________________________, of the City of ___________________, in the Commonwealth of Virginia, Barrister and Solicitor, DO HEREBY CERTIFY:

THAT I was this day consulted in my professional capacity by _______________________________, named in the within instrument, being a Prenuptial Agreement, separate and apart from _______________________________. I consulted as to _______________________________'s legal rights and liabilities under the terms and conditions of the Prenuptial Agreement, and I acted solely for _______________________________, explaining fully to _______________________________ the nature and effect of the said Prenuptial Agreement. _______________________________ did execute it in my presence, and did acknowledge and declare that they were executing it of their own volition and without any fear, threats, compulsion, or influence from _______________________________, or any other person.

DATED at the City of ___________________, in the Commonwealth of Virginia, this _____ day of ______________, 20___.

____________________________________
BARRISTER & SOLICITOR
Printed Name: ________________________

I, _______________________________, the person named in the annexed Agreement, hereby acknowledge the foregoing this ____day of ______________, 20___.

____________________________________
FIRST PARTY
Printed Name: ________________________

CERTIFICATE OF INDEPENDENT LEGAL ADVICE

THE COMMONWEALTH OF VIRGINIA
COUNTY OF _________________

I, _________________________, of the City of ___________________, in the Commonwealth of Virginia, Barrister and Solicitor, DO HEREBY CERTIFY:

DATED at the City of ___________________, in the Commonwealth of Virginia, this _____ day of ______________, 20___.

____________________________________
BARRISTER & SOLICITOR
Printed Name: ________________________

I, _______________________________, the person named in the annexed Agreement, hereby acknowledge the foregoing this ____day of ______________, 20___.

____________________________________
SECOND PARTY
Printed Name: ________________________

Special Notes on Prenuptial Agreements governed by the Commonwealth of Virginia

The Commonwealth of Virginia has chosen to adopt the Uniform Premarital Agreement Act (UPAA), a statute created for the purpose of standardizing the requirements of prenuptial agreements between states. As such, this Agreement has been worded based on the notion subscribed to by the UPAA that prenuptial agreements should be entered into voluntarily and fairly upon the exchange of disclosure between the Parties.

It is best to sign the Prenuptial Agreement in front of your own lawyer and to receive a Certificate of Independent Legal Advice from your lawyer. Alternatively, you should consider seeing a notary public or at the minimum sign the document in front of one or two witnesses.

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