Defining what property is separate property and what is community property (belonging equally to the couple) Clarify agreements between the spouses Establish how future matters will be decided Support your estate plans Reduce conflicts and save money on attorneys’ fees in the event of a divorce[2] X Research source
State law may protect you without a marriage contract. [5] X Research source There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin (Alaska also has an opt-in community property law). [6] X Research source In community property states, most property acquired during marriage is presumed to be community property, while property acquired before or after marriage, or inherited or purchased with funds earned before marriage, is considered to be separate property. If you live in a community property state, you might forego a marriage contract and just rely on the law for the division of your property in the event of a divorce. [7] X Research source
You might consider giving your partner some reading material about marriage contacts, like a book or website, to read on his or her own time. Then you’ll both have a better understanding of the basics, and will be more emotionally prepared to have an honest conversation.
Several high profile cases of marriage contracts being overturned have demonstrated that it can be cheaper and simpler to not have a marriage contract at all than to have one that is drafted incorrectly. [10] X Research source An attorney can also advise you of any specific state law that relates to your agreement. [11] X Research source You can get referrals from friends and family, or from attorneys who may not practice family law but know a trusted colleague who does. You can also use referral services through your state and local bar associations, or just search online.
This sample is designed to give the spouses community property rights. This sample is designed to keep all earnings and property separate. You can modify any sample to suit your circumstances.
There are some provisions that courts will not enforce, including:[15] X Research source Agreements regarding child support, custody, and visitation; Financial incentives that promote divorce; and In some states, waivers of spousal support/alimony, especially if one spouse would have to collect welfare. [16] X Research source
For example, “This contract is entered into by John Doe (“John”) and Jane Smith (“Jane”) on May 12, 2009.
For example, “Each Party wishes to define and determine his or her respective rights and obligations with respect to his or her own property and in the property 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. “[17] X Research source
For example, “Each party has had the opportunity to retain his or her own lawyer and receive independent legal advice regarding the terms of this Agreement. “[18] X Research source
For example, “The Parties each warrant and represent to the other that they each 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 best interests. “[19] X Research source
For example, “This Agreement is contingent upon the Parties’ contemplated marriage. In the event the marriage does not occur, then this Agreement shall and void and of no force or effect. “[20] X Research source
Property acquired prior to marriage; Property acquired during marriage by bequest, devise, descent, or gift to one spouse; Compensation for personal injuries; Property acquired after divorce or separation; Property purchased with or exchanged for separate property; and Appreciation, profit, or other increase in value from separate property during marriage. [21] X Research source
For example, “The Parties have made full and complete disclosure of their assets and liabilities; and all assets and liabilities have been accurately stated on Exhibits A and B attached hereto. "
For example, “Termination Event is defined to be the soonest occurrence of the following events: “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; The commencement of an action for divorce, separation, or annulment; “The execution of a written separation agreement. “[23] X Research source
Who will keep the family home? Should you sell the home and split the proceeds? If so, when will the home be sold, and who will get to live in it in the interim?[24] X Research source Will one spouse receive spousal support? If so, how much? (Your state law may prohibit a spouse from waiving his or her right to spousal support. ) Which assets, such as bank accounts, will be split 50/50? Which assets will be divided according to some other scheme? Will any major assets need to be sold, or can one spouse keep a major assets in exchange for letting the other spouse keep something else? Will some assets be set aside for someone else, such as a child’s college fund? What happens if one spouse dies after the Termination Event, but prior to a divorce decree?
For example, “This Agreement shall become null and void and of no force or effect upon the earlier occurrence of either of the dates upon which: (1) the Parties remain married for ten years, or (2) the Parties have a child together. "
For example, “Each Party confirms that he or she has received sufficient financial disclosure of the other Party’s assets from the other party and the other Party’s attorneys, that the other Party offered to respond fully and directly to all questions such Party and the Party’s attorneys might have concerning such financial information, that such Party regards such information and the information set forth in 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 pursuant to this Agreement. Each Party agrees that to the extent that any assets, income, or liabilities have not been disclosed for any reasons to either of them, knowledge of such additional assets or liabilities would not be relevant to the 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. “[26] X Research source
For example, “The laws of the State of New York 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. [27] X Research source
For example, “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. “[28] X Research source
For example, “Each Party shall, upon the request of the other or of any third party with an appropriate interest, execute, acknowledge, and deliver any instruments appropriate or necessary to carry into effect the provisions and intent of this Agreement. "
For example, “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. “[30] X Research source
For example, “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. “[31] X Research source
For example, “This Agreement will be binding upon and will ensure to the benefit of the parties, their respective heirs, executors, administrators, and assigns. “[32] X Research source
For example, “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. “[33] X Research source
John declares that he has been represented by independent counsel in the negotiation and execution of this Agreement, having been represented by Green and Associates, LLP, and that he fully understands his legal rights and liabilities. " John agrees that he shall be responsible for Jane’s legal fees incurred in connection with the negotiation, preparation, and execution of this Agreement. " If either Party contests the validity of this Agreement or any provision thereof, that Party shall be responsible for the reasonable value of any legal services rendered on behalf of either Party by reason of the other Party’s unsuccessfully contesting the validity of this Agreement or any provision hereof, whether such services arise out of court action or otherwise, and shall be paid by the Party unsuccessfully contesting the validity of this Agreement or any provision hereof. “[34] X Research source
You can also find a notary public by visiting your local bank. Most banks do not charge a fee for notary services if you are a bank customer. If you are not a bank customer, you can use the bank’s notary service for a small fee.
You can amend or revoke your contract in the future, but for the most part, think of it as an insurance policy. [36] X Research source You’ll be glad you had it if you ever need it.
