Antenuptial - Nuptial or Premarital Agreement

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SUMMARY: Also called a Prenuptial or Premarital Agreement, this contract determines the distribution of personal and marital assets upon the dissolution of the marriage. Couples use these agreements to determine how property will be divided and whether alimony will be paid in the event the couple later divorces. Some couples choose to make a premarital agreement as a way of clarifying their intentions and expectations, as well as their rights should they later split up or to circumvent what a court might decide in the event of a divorce.

NOTE: Agreements that promote divorce, waive spousal support altogether or that require marriage as the contract's consideration will be held invalid for public policy reasons. One cannot contract around child support.

Property owned before Marriage
Maintain accurate and complete books and records to establish the separate nature of property you wish to keep separate from the marital estate, such as that held by you prior to marriage or received by you alone as a gift or inheritance during the marriage. If all of this record-keeping seems a tad "unromantic," just think about trying to separate it all ten years from now, when you've both been referring to everything around the house as "ours."

Property inherited or received by gift during the Marriage
Many people will want to keep separate the property they inherit or receive by gift. Others will want to "donate" the property to the relationship. Again, it's up to you. Remember that any property given to both of you is legally owned by both -- this includes gifts you receive at your union ceremony or anniversary party.

Property bought during the Marriage
Be aware that the increase in value of non-marital property may be considered marital, such that each spouse is entitled to a share upon divorce or the death of the property owner, especially if the appreciation in value is considered "active" rather than "passive." Passive appreciation is, for instance, the increase in value of a bank account as a result of interest earned, or the increase in value of property merely as a result of inflation. Active appreciation, on the other hand, occurs as a result of some form of actual effort.

Expenses during the Marriage
How will you divide the day-to-day costs for food, utilities, laundry, housing and the like, especially if expenses go up or incomes go down?

Single Account. Many couples have only one checking account. They both deposit their paychecks into it and pay all household bills out of it.

50-50. Each spouse maintains a record of expenses paid for by him or her. At the end of some predetermined period, the totals are added up and the spouse who contributed less than 50% writes the other a check to even things up.

In proportion to income. This works especially well for people with great income discrepancies.

Representation
Each party represents that they were represented by separate and independent legal counsel of his or her own choosing.

Debts
Neither party shall assume or become responsible for the payment of any debts or obligations of the other party because of the marriage. Neither party shall do anything that would cause the debt or obligation of one of them to be a claim, demand, lien or encumbrance against the property of the other party without the other party's written consent.

Homestead
Each party releases any claim, demand, right or interest that the party may acquire because of the marriage and any real property of the other because of homestead property provisions of the Florida Constitution or Florida Statute concerning the descent of the property as homestead, upon divorce of the parties or death of either party.

Financial Condition
Each party has full knowledge of the financial condition, nature and character of the other party's estate and property (attach copies as exhibits).

Tax Returns
The parties agree to file joint income tax returns if it is in the parties' interest to do so as determined by their respective accountants on a year to year basis, so long as they are legally eligible, whether living together or separate.

All Necessary Papers
Each party agrees to sign and execute all documents, instruments, title papers, deeds or other documents that are proper and necessary as might be required by law to make and effectuate any transfer or conveyance by either party, and that each party shall be prompt and considerate in this regard.

Severability
In the event any part, portion or provision or paragraph of this Prenuptial Agreement is declared void or invalid by any legislative act or judicial determination, the remaining portions of this Prenuptial Agreement shall not be affected and thereby it shall remain in full force and effect and be binding upon the parties hereto.

Mediation and Arbitration
Mediation and Arbitration should always specify a location in Client's jurisdiction (preferably, in the same county where they run their business). Mediation is a non-binding way to settle the dispute quickly and amicably. If unable to settle in mediation, arbitration is first option available. Arbitration is the preferred alternative to litigation because of speed, cost, and ability to maintain low profile (no info is publicly available).

Governing Law
Always stipulate that the contract will be governed under whatever law the Client ordinarily conducts business. Always make sure that venue and jurisdiction are as convenient to client as possible.

No Modification or Waiver
No modifications except those specifically agreed upon by the parties in writing. Any waiver of a term or provision will not act as a waiver of any other provision.

Entire Agreement
This agreement constitutes the entire agreement of the parties and may be modified only in a writing executed by both parties.

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