1st edition
Prenuptial
Agreements:
How to Write a Fair and
Lasting Contract
by Attorney Katherine E. Stoner
& Shae Irving, J.D.
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Lasting Contract
by Attorney Katherine E. Stoner
& Shae Irving, J.D.
First Edition APRIL 2004
Editor LISA GUERIN
Illustrations MARI STEIN
Cover Design TONI IHARA
Book Design TERRI HEARSH
Proofreading ROBERT WELLS
CD-ROM Preparation ANDRÉ ZIVKOVICH
Index THÉRÈSE SHERE
Printing DELTA PRINTING SOLUTIONS, INC.
Stoner, Katherine E., 1947-
Prenuptial agreements : how to write a fair and lasting contract / by Katherine E. Stoner
and Shae Irving 1st ed.
p. cm.
Includes index.
ISBN 0-87337-996-9 (alk. paper)
1. Antenuptial contracts United States Popular works. I. Irving, Shae. II. Title.
KF529.Z9S76 2004
346.7301'662 dc22
2003064967
Copyright © 2004 by Nolo.
All rights reserved. Printed in the USA.
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edited numerous Nolo books including the best-selling Plan Your Estate and
Nolo’s Simple Will Book.
Table of Contents
I
How to Use This Book
A. How This Book Can Help You I/2
B. Using This Book to Draft Your Own Prenup I/2
C. Our Assumptions I/2
D. Icons Used in This Book I/5
1
A Prenup Primer
A. How Prenups Work 1/2
B. How to Make a Prenup 1/4
2
Is a Prenup Right for You?
A. What You Can Do With a Prenup 2/2
B. What You Can’t Do With a Prenup 2/6
C. Will a Prenup Work for You? 2/8
3
Deciding on the Specifics
A. Evaluating Your Situation 3/2
B. Talking It Through 3/7
C. Will Your Prenup Pass the Fairness Test? 3/12
4
Understanding Your State’s Law
A. Which Laws Apply to Your Prenup? 4/2
B. Preparing to Review the Law 4/3
C. An Overview of State Law 4/3
D. Researching State Law 4/17
E. Do You Still Want a Prenup? 4/20

A. Storing the Original Agreement and Copies 9/2
B. Recording an Abstract of the Agreement 9/2
C. Following Your Own Rules 9/5
D. Completing Your Estate Plan 9/5
E. Reviewing the Agreement 9/6
F. Changing Your Prenup: Postnuptial Agreements 9/6
G. Closing Thoughts 9/7
Appendixes
A
How to Use the CD-ROM
A. Installing the Form Files Onto Your Computer A/2
B. Using the Word Processing Files to Create Documents A/2
C. Files Provided on the Forms CD-ROM A/4
B
Worksheets
Worksheet 1: Financial Inventory B/3
Worksheet 2: Credit History and Spending Habits B/7
Worksheet 3: Financial Outlook B/9
Worksheet 4: Prenup Goals B/11
Worksheet 5: The Basics of Our Prenup B/13
Worksheet 6: Comparison of Prenup to Law B/17
C
Clauses for Building Your Prenup
A. Your Prenup’s Title C/2
B. The Ten Basic Paragraphs (Mandatory for All Agreements) C/2
C. Optional Paragraphs—Insert After Paragraph 8, Above C/22
D. Financial Disclosures C/29
E. Abstract of Prenup C/31
D
Summary of State Prenup Laws

arise. For example, you might have misgivings about
exploring the idea of a prenup with your beloved for
fear of appearing coldhearted or mercenary. Maybe
you aren’t sure if a prenup is what you really need. Or
perhaps the two of you have decided you want a prenup
but you don’t know how to start putting it together.
If you even leaf through the first few chapters of
this book, you will see that there are definite benefits
to making your own rules about the financial aspects
of your marriage instead of leaving everything to the
laws of your state. Although prenups aren’t for every-
one, you can successfully use them for the following
purposes and more:
• coordinating and supporting your estate plans, to
be sure that family property passes as you wish
• specifying ground rules for buying and owning
property together, and
• avoiding potentially divisive issues that could
arise if you ever separate.
In addition, while a prenuptial agreement may not
seem like a very romantic project, working together to
consider and choose the terms of a prenup can actually
strengthen your relationship. After all, marriage is a
partnership in every sense of the word. Learning how
to deal respectfully and constructively with each other
about finances is a benefit in itself. So even if you
conclude that you don’t need a prenup, using this
book can help you converse with each other about the
important—and sometimes challenging—financial
matters that are sure to arise in the course of your

subject.
We think that a prenuptial agreement is more than
just a legally binding contract. It is the material and
financial counterpart to wedding vows.
When you marry, you make what you expect and
hope will be a lifetime commitment to be there for
each other in every way. Your prenup should support
and reflect the spirit of partnership with which you
approach your wedding vows.
Prenups aren’t always negotiated in this spirit, but
we believe they should be. Not only that, we think this
is the best way to ensure that a prenup will be binding
in court, should a serious dispute ever arise.
INTRODUCTION I/3
This means we’re making certain assumptions about
how you will approach your prenup. They are:
• you want to be fair
• you are prepared to make full disclosure about
your property and finances
• you are willing to communicate about finances,
and
• you’ll each work with a lawyer.
Let’s look at each of these assumptions more
closely.
1. You Want to Be Fair
Forgive us for stating the obvious. Of course you want
to be fair. However, there is often more to “fairness”
than meets the eye.
In our view, a prenuptial agreement is fair if it
meets two criteria:

it more likely that a court will enforce your premarital
agreement, if it comes to that. As you use this book,
you’ll learn how to prepare an agreement that’s fair.
2. You’re Prepared to Make Full Disclosure
Our second assumption is closely related to the first. A
premarital agreement is most likely to be viewed as
fair—by you and by the courts—if it is based upon
complete and accurate financial information. This
means that you should both disclose everything you
own (including approximate values) and all of your
debts (including any obligations from a prior marriage,
such as child support or alimony). We are not alone in
considering full disclosure basic to fairness. Virtually
every state requires that any premarital agreement be
accompanied by complete written disclosure of both
parties’ financial circumstances.
As you work with this book, we’ll help you figure
out exactly what you own and what you owe. We’ll
also give you detailed information to help you prepare
the written financial disclosures that will accompany
your prenup.
3. You’re Willing to Communicate
About Finances
Let’s face it: Although most of us marry for love rather
than money, marriage is a financial partnership as well
as a spiritual, emotional, and physical union. Sooner or
later, the two of you will need a workable understand-
ing about how to handle your finances, even if it’s just
day-to-day stuff like whether to have a joint bank account
or who will pay the bills. This means that you’ll want to

marital agreement, you should get help from a good
lawyer. In fact, you will need two lawyers—one for
each of you. That may sound surprising in a self-help
legal book, but it’s true. Here’s why:
As we’ll discuss in the next chapter, our Anglo-
American legal system views marriage as a matter of
contract between two consenting adults. The terms of
the “marriage contract” are dictated by the laws of the
state where the married people live, unless they have a
premarital agreement containing different terms.
The laws governing marriage contracts vary tremen-
dously from state to state. In this book, we provide
some general information on each state’s laws relating
to prenups, and we give you some tips on doing your
own legal research. (See Chapter 4 and Appendix D.)
However, if you don’t want to invest your time learning
the ins and outs of your state’s matrimonial laws, a
lawyer who knows the intricacies of those laws will be
an important resource. She or he can help you put
together an agreement that meets state requirements
and says what you want it to say.
This explains the desirability of having one lawyer,
but why two? That’s because prenuptial agreements
are still scrutinized by the courts, sometimes very
closely. If you want your agreement to pass muster,
having an independent lawyer advise each of you can
be critical. While most courts don’t require that each
party to a prenup have a lawyer, the absence of sepa-
rate independent advice for each party is always a red
flag to a judge. On a practical note, having separate

Slow down and consider potential problems.
Take advantage of an important tip.
Consider talking with your lawyer or another
expert.
You may be able to skip some material that
doesn’t apply to your situation.
Go to these sources for more information about the
particular issue or topic discussed in the text. ■

CHAPTER
1
A Prenup Primer
A. How Prenups Work 1/2
1. Making Your Own Rules 1/3
2. What a Typical Prenup Covers 1/4
B. How to Make a Prenup 1/4
1. Start Early 1/5
2. Decide Whether You Need a Prenup 1/5
3. Agree on the Specifics 1/5
4. Create a Draft Agreement 1/5
5. Write Up the Final Agreement 1/5
6. Show the Agreement to Your Lawyers 1/6
7. Sign the Agreement 1/6
8. Enjoy Your Wedding 1/6
1/2 PRENUPTIAL AGREEMENTS
“
P
renup” is an informal term for “prenuptial
agreement,” a written contract created by two
people before they are married. A prenup

the assets of a wealthy fiancé, couples of more modest
means are increasingly turning to them for their own
purposes. For example, a marrying couple with children
from prior marriages may use a prenup to spell out
what will happen to their property when they die, so
that they can pass on separate property to their children
and still provide for each other, if necessary. Without a
prenup, a surviving spouse might have the right to
claim a large chunk of the other spouse’s property,
leaving much less for the kids.
Couples with or without children, wealthy or not,
may simply want to clarify their financial rights and
responsibilities during their marriage. Or they may
want to avoid potential arguments if they ever divorce
by specifying in advance how their property will be
divided. Prenups can also be used to protect spouses
from each other’s debts, and they may address a
multitude of other issues as well.
Exactly what you decide to do with your prenuptial
agreement depends on your particular circumstances
and wishes. But before getting into the specifics of
what you want to accomplish with a prenup, it’s wise
to have a basic understanding of what you’re doing
when you make this type of contract. To put it briefly,
A Note for Same-Sex Partners
Legally sanctioned same-sex relationships similar to
marriage are now recognized in several states, and
other states may follow suit. Same-sex couples who
are planning to enter into a legal partnership face
many of the same basic concerns confronted by

known as either marital or community property, depend-
ing on the state. We explain these terms in more detail
in Chapter 4 and Appendix D.) State law may even
have a say in what happens to some of the property
you owned before you were married.
Under the law, marriage is considered a contract
between bride and groom, and with that contract comes
certain automatic property rights for each spouse. For
example, in the absence of a prenup stating otherwise,
a spouse usually has the right to:
• shared ownership of property acquired during
marriage, with the expectation that the property
will be divided between the spouses in the event
of a divorce or at death
• incur debts during marriage that the other spouse
may have to pay for, and
• share in the management and control of any marital
or community property, sometimes including the
right to sell it or give it away.
So what do you do if some of these laws—called
marital property, divorce, and probate laws—aren’t to
your liking? Enter the prenup, which in most cases lets
you decide for yourselves how your property should
be handled.
As part of making your prenup, you’ll review your
state’s laws to see how your own preferences for
property ownership, division, and distribution compare
with the state’s rules. If you find that state law already
provides the type of property treatment you wish, there
may be no need to make a prenup. But if you find that

legally was a prenup that spelled out the couple’s
rights in the event of a divorce. Prior to 1970, such an
agreement was considered unenforceable in all states
because it was seen as a way to encourage divorce.
As divorce and remarriage have become more
prevalent, and with growing equality between the
sexes, courts and legislatures are increasingly willing
to uphold premarital agreements. Today, every state
permits them, although a prenup that is judged unfair
or otherwise fails to meet state requirements will still
be set aside. Because courts still look carefully at
prenups, it is important that you negotiate and write up
your agreement in a way that is clear, understandable,
and legally sound. As you progress through the steps
in this book, we’ll show you how to avoid the pitfalls
that could invalidate your agreement.
1/4 PRENUPTIAL AGREEMENTS
2. What a Typical Prenup Covers
Every prenup is unique to the couple that signs it. How-
ever, to introduce you to what a prenup can include—
and what you might accomplish with yours—this
section offers a list of typical prenup provisions.
Most prenups begin with a brief description of each
party’s circumstances—such as age, occupation, any
children, and maybe even intentions for future employ-
ment or education. And prenups almost always include
disclosures of both parties’ finances—that is, assets,
liabilities, and incomes. (These disclosures are usually
attached to the end of the prenup as separate lists.)
Beyond that, what appears in the contract depends

giving up his or her rights.
•A provision spelling out how property will be
divided in the event of a divorce.
•A provision requiring each party to sign documents
after the marriage reaffirming any waivers contained
in the prenup. (This usually applies to waivers of
rights to retirement benefits or an interest in real
estate.)
•A provision specifying how household expenses
will be paid.
•A provision that the agreement will automatically
terminate on a certain date in the future, often
called a “sunset clause.”
Some prenups also include provisions that are
enforceable in some states, but not in others. The most
notable examples are provisions waiving alimony if there
is a divorce or legal separation, and the so-called “bad-
boy” (or bad-girl) clause requiring financial compensation
if one party is caught cheating on the other.
In addition to the typical provisions, many prenups
contain terms that are tailor-made to the couple’s
circumstances. For example, there might be an agree-
ment that the couple will own a home in certain
percentages, or perhaps the couple will promise to
take turns supporting each other while obtaining an
education.
Finally, every prenup contains standard clauses that
go into all agreements of this kind. Lawyers often call
these clauses “boilerplate” (a newspaper term referring
to preset or syndicated features). The boilerplate in a

stand up in court later.
Before signing, you should allow a couple of
months—or longer, if you can—for talking together
and figuring out the details of your agreement, getting
it reviewed, and putting it into final form for signing.
Although it’s possible to plan and finalize a prenup
in less than three months, moving too fast will add un-
needed stress and could doom your efforts to create a
clear and fair agreement.
A premarital agreement is a binding legal docu-
ment. It’s true that some prenups get thrown out of
court because they were signed at the last minute, but that
doesn’t mean yours will be. If you have reservations about
a proposed agreement, don’t sign it with the hope that
you can get out of it later. You never know exactly what a
particular court or judge might do.
2. Decide Whether You Need a Prenup
If you’re reading this book, you’ve probably already
decided that a prenup is what you want. Even so, it
doesn’t hurt to take a little time to examine your situa-
tion (together, if possible) to figure out if a prenup is
what you need. Chapter 2 is devoted to helping you
decide whether a prenup is right for your situation.
3. Agree on the Specifics
Once you’ve decided to go forward, the next step is to
figure out exactly what your agreement should say. This
involves doing some list making and some soul search-
ing, both separately and together. Clear communication
is essential to success in this endeavor, and it doesn’t
hurt to know a little about constructive negotiating, too.

After you’ve made a draft agreement, each of you
should read it carefully to see whether you need to
make changes to it. Once that’s done, you’ll either
prepare the final document yourselves or hire a lawyer
to help you; the best way to proceed is to hire separate
lawyers for each of you. Chapter 7 takes you through
the process of finalizing your prenup, including
1/6 PRENUPTIAL AGREEMENTS
suggestions for finding good lawyers and tips on how
to work with them.
6. Show the Agreement to Your Lawyers
Whether you’ve prepared the final agreement your-
selves or with the help of a lawyer (or two), the next
step is to have your separate lawyers review the agree-
ment to confirm that it’s legally sound. (We discuss the
importance of having separate lawyers review your
agreement in the Introduction to this book and in
Chapter 7, Section B.)
7. Sign the Agreement
Signing the agreement should be something you
remember without regret. Plan to sign at a time when
you can pay attention to the moment. If the agreement
will be notarized, you’ll need to arrange to sign when
a notary is available. You may also have to contend
with your lawyers’ schedules, so it’s important to plan
ahead. You may even want to make a ceremony out of
the event, or you might plan a little celebration after-
ward—just the two of you. Whatever you do, after the
hard work you’ve done getting to this point, do what
you can to make signing the agreement a relaxed and