What is a Prenuptial Agreement?

A Prenuptial Agreement is a contract that you and your future husband or wife create prior to becoming legally married. It is used to set out the current and future financial responsibilities of each partner in case the couple separates, divorces, or one partner passes away. For individuals who want to protect themselves but who will not be legally married, a ProductLink code="COHAB" text="Cohabitation Agreement" (sometimes called a Common Law Partner Agreement) can serve as a solution.

What does a Prenuptial Agreement cover?

Prenuptial Agreements generally cover any and all financial matters. This includes division of properties, income, businesses, investments, inheritances, and other similar assets. Typically, prenups also cover the division of joint debt (for instance, debt that accrued from a joint credit card) and aspects of alimony (also known as spousal support). A prenup cannot include terms regarding child custody, child visitation, or child support for existing or future children.

Who should use a Prenuptial Agreement?

Most engaged couples would benefit from creating a Prenuptial Agreement before getting married. However, it is especially recommended if you: Have children from a previous relationship Have personal assets that you wish to separate from any assets you share with your future husband or wife Would like to protect a personal inheritance, business, or investment Would like to avoid any conflict or confusion in the event of a divorce, separation, or the passing of your spouse

Can same sex couples use LawDepot's Prenuptial Agreement?

A Prenuptial Agreement can be used by any engaged couple who can legally marry in the United States. Gay marriage is recognized in all states. LawDepot's Prenuptial Agreement allows the two parties in the document to list themselves as same sex or male and female.

What is the difference between separate and shared property in a prenup?

A prenup typically clarifies which assets are considered separate or shared. Separate property (sometimes called separate assets) is property owned by one partner, whereas shared property (sometimes called shared assets) is property owned by both you and your future husband or wife. Generally, property purchased after a couple marries is considered shared property. If the relationship ends, separate assets are retained by the partner that owns them and shared assets are divided in accordance with the terms of the Prenuptial Agreement or state law.

Can a Prenuptial Agreement be voided?

Yes, if a Prenuptial Agreement is not created properly or in good faith, it can be voided. For instance, a Prenuptial Agreement is invalid 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 unwillingly comply with an 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 You and your partner will also want to sign your Prenuptial Agreement following the proper procedure, which is to both sign in front of a witness. A couple may wish to have their agreement reviewed by a lawyer as well. If so, keep in mind that each partner is required to get legal advice from their own lawyer (i.e. independent legal advice) to avoid issues such as duress or fraud.

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Frequently Asked Questions

Can we create a prenup if we are already married?No, prenuptial agreements are only valid if signed before you are married since many of your assets could be considered marital property.What if we do not live in the same state?If the parties reside in different states before marriage, then you should choose the state that the couple will live in after marriage.

However, if neither party currently resides in the state they will live in after marriage, then you can select either state. For example, if one party resides in California, and the other party resides in Arizona, and both will reside in Florida after marriage, then select either Arizona or California.

Your Prenuptial Agreement

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PRENUPTIAL AGREEMENT

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

BETWEEN:

______________________
of __________

- 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.
All jointly acquired or jointly held property, however and whenever acquired, will remain the property of and be owned by both Parties and will be treated as shared property (the "Shared Property").
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") 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") 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
In the event of a separation the Parties agree that spousal support may be payable to one of the Parties on the basis of the Party's financial circumstances at the time of separation or otherwise. It is understood and accepted by each Party that spousal support will be determined according to the appropriate Federal or State laws.
ESTATES AND TESTAMENTARY DISPOSITION
Nothing in this Agreement will limit or affect any rights that each may acquire as spouse or surviving spouse in the property, assets or estate of the other spouse.
Nothing in this Agreement will invalidate or prevent either Party from naming the other as a beneficiary by will or other testamentary disposition.
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: _________________

________________________
______________________

_____________________________
Witness
Printed Name: _________________

________________________
______________________

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

________________________
______________________

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 ______________________, as to his legal rights and liabilities under the terms and conditions of it, and that I acted solely for him, and explained fully to him the nature and effect of the said Prenuptial Agreement and he did execute it in my presence, and did acknowledge and declare that he was executing it of his 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
Print Name: _________________

I, ______________________, the person named in the annexed Agreement, hereby acknowledges the foregoing this ____day of ______________20___.

________________________
______________________

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 ______________________, as to her legal rights and liabilities under the terms and conditions of it, and that I acted solely for her, and explained fully to her the nature and effect of the said Prenuptial Agreement and she did execute it in my presence, and did acknowledge and declare that she was executing it of her 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
Print Name: _________________

I, ______________________, the person named in the annexed Agreement, hereby acknowledges the foregoing this ____day of ______________20___.

________________________
______________________

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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