Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

What Does A Prenuptual Agreement Look Like?

The attorneys at our New Jersey based law firm have drafted many Prenuptial Agreements.  As lawyers who only handle family law related cases, we understand what such an agreement requires in order to be upheld by a judge of the Family Part of the Superior Court of New Jersey.  Examples include an attachment to the Prenuptial Agreements which provdes full disclosure of any and all assets and liabilities of each party.  It is also highly recommended that each party has their own lawyer to represent them.  Furthermore, this is a document that should be finalized and fully-executed by both parties and their respective attorneys as far away from the actual wedding date.  Below, please find a sample Prenuptial Agreement:

PRENUPTIAL AGREEMENT

THIS AGREEMENT, made and entered into this 15th day of September, 2003, by and between STUART M. JOHNSON, hereinafter referred to as “Husband”, and EILEEN S. MATTHEWS, hereinafter referred to as “Wife”, both of whom are also referred to herein individually as a “party” and together as the “Parties,”

W I T N E S S E T H:

WHEREAS, a marriage is contemplated and shortly to be had and solemnized between STUART M. JOHNSON, of the County of Middlesex, State of New Jersey, and EILEEN S. MATTHEWS, of the County of Middlesex, State of New Jersey; and

WHEREAS, Husband has been previously married and has two (2) children; Wife has been previously married and has two (2) children.  Each possesses or will possess wealth derived from their respective families or as a result of their respective employment. 

WHEREAS, the parties desire to clarify what their respective rights are to be in the property belonging to each other; to limit their respective rights in the property of the other during the marriage relationship and upon its termination by dissolution or death; to and to accept the provisions of this Agreement in lieu of and in satisfaction of all such rights; and

WHEREAS, the Parties believe that this Agreement will enhance and encourage a harmonious marital relationship between them; and,

WHEREAS, the Parties have disclosed and discussed their mutual rights and obligations, in furtherance of which the Husband, through Exhibit “A” hereto, and the Wife, through Exhibit “B” hereto, have disclosed their respective assets, liabilities, and sources of income to each other, which disclosures each represent to the other to be substantially accurate and which include copies of their respective most-recently filed Federal Income Tax Returns; and,

WHEREAS, the Parties hereto both stipulate that they, and each of them, were advised to be and have been represented by legal counsel of their choice in the preparation and execution of this Agreement; they were advised to and have read this Agreement and have had its contents explained to them, by such counsel.  In addition, the Parties were advised not to and did not execute the document until they fully understood the terms, provisions, and legal consequences of this Agreement.

NOW THEREFORE, in consideration of the mutual covenants, agreements and promises hereinafter set forth between the parties, and agreement of the parties to enter into the contract of marriage, and the obligations and special advantages derived in and by the terms of this Agreement, the parties hereto covenant and agree as follows:

1. RECITALSAll of the recitals heretofore made are incorporated into and made a part of this Agreement.

2. PURPOSEThe purpose of making this Agreement is that the parties are contemplating marriage and wish to settle all questions of property and financial responsibility between themselves, to eliminate any questions or legal contests between the parties hereto and the heirs, devisees or Personal Representatives of either party who may subsequently pass on.

3. VOLUNTARINESS: Each of the parties has entered into this Agreement freely and voluntarily, and each has had an opportunity to review in detail and obtain the services of an attorney prior to the execution of this Agreement, and each of them fully comprehends their rights and understands the consequences of executing this Agreement.

4. MARRIAGE AS A CONDITION PRECENDENT:  This Agreement is to become effective immediately upon the marriage of the parties, and not until then.  In the event there is no marriage between the parties, this Agreement shall have no force and effect.

5. CONSIDERATION: The parties acknowledge that each of them would not enter into the contemplated marriage except for the execution of this Agreement in its present form.  The consideration for entering into this Agreement will be the marriage to be hereafter entered into, and each of the other party’s agreement to enter into and make the mutual covenants contained in this Agreement and to be performed by the respective parties; all of said items constituting the consideration for this Agreement.

6. CHILDREN BY PRIOR MARRIAGE:  The Husband acknowledges that he has two (2) children by a previous marriage, and the Wife acknowledges that she has two (2) children by a previous marriage.  Both acknowledge that neither shall have any responsibility for the children of the other party during the marriage and after the marriage.

7. CONDITIONS OF AGREEMENT:

a. Separate Properties:  After the solemnization of the marriage between the parties, and except as otherwise set forth herein, each party shall separately retain all rights in his or her own property, whether now owned or hereafter acquired, and each shall have the absolute and unrestricted right to manage, dispose of or otherwise deal with such separate property free from any claim that may be made by reason of their marriage, and with the same effect as if the parties had never been married at all.  The other party shall not claim or acquire any interest in the solely owned property of the other party if it increases in value during the marriage.

The following shall constitute and remain the separate property of the respective parties not subject to equitable distribution or any claim by the other party:

( i ) Property acquired by a party before the contemplated marriage or property acquired at any time by bequest, devise, descent or by gift from a person other than the other party to this agreement; the increase in value of such property, whether or not such appreciation is due in whole or in part to the contributions or efforts of the other party to this agreement; property acquired in exchange for such property, proceeds or with other separate property;

( ii ) Compensation for personal injuries:

( iii ) Compensation for personal services; retirement or pension benefits or proceeds of insurance policies received from any source; dividend, interest or other income derived from any source whatsoever, including but not limited to property designated as separate property in this agreement; and all other income of all kinds and from all sources, except income from marital property as defined by statute.

b. Earnings:  It is agreed and understood that any earnings or moneys received by either party during the term of the marriage shall be the sole and exclusive property of that party to the extent that the funds are maintained in separate and individual accounts.  These funds shall not be considered marital assets nor shall be subject to equitable distribution or any alimony claim by the other party.

c. Transfers:  Notwithstanding the provisions of this Agreement, either party shall have the right to transfer or convey to the other any property or interest therein which may be lawfully conveyed or transferred during his or her lifetime, or by Will or otherwise upon death.  Neither party intends by this Agreement to limit or restrict in any way the right and power to receive any such transfer or conveyance from the other.

d. Joint Property:  If the parties acquire property jointly during the marriage, the property shall be held by them as provided in the instrument conveying or evidencing the title to the property.  If the instrument does not specify otherwise or if there is no instrument, the property shall be held as a tenancy by the entirety.

e. Disposition of Property:  Each party retains the management and control of the property belonging to that party and may encumber, sell or dispose of the property without the consent of the other party.  Each party shall execute any instrument necessary to effectuate this paragraph on the request of the other party.  If either party does not join in or execute an instrument as required by this paragraph, the other party may sue for specific performance or for damages, regardless of the doctrine of spousal immunity, and the defaulting party shall be responsible for the other party’s costs, expenses and attorney’s fees.  This paragraph shall not require a party to execute a promissory note or other evidence of debt for the other party.  If a party executes a note or evidence of debt for the other party, the other party shall indemnify the party executing the note or other evidence of debt from any claims or demands arising from the execution of the instrument.  Execution of an instrument shall not give the party executing it any right or interest in the property of the party requesting execution.

f. Husband’s Obligations:  The Husband represents, warrants and covenants that he has not heretofore incurred nor will he hereafter incur any debt, charge, obligation or liability whatsoever for which the Wife, her legal representative or her property or estate is or may become liable.  The Husband agrees to indemnify and hold the Wife harmless from loss, expenses (including reasonable attorney’s fees) and damages in the event that a claim is made upon her arising out of or in connection with a breach by him of the representations, warranties and covenants of this paragraph.

g. Wife’s Obligations:  The Wife represents, warrants and covenants that she has not heretofore incurred nor will she hereafter incur any debt, charge, obligation or liability for which the Wife, her legal representative or her property or estate is or may become liable.  The Husband agrees to indemnify and hold the Wife harmless from loss, expenses (including reasonable attorney’s fee) and damages in the event that a claim is made upon her arising out of or in connection with a breach by him of the representations, warranties and covenants of this paragraph.

h. Estates:  Each party consents that the estate of the other may be disposed of by will or codicil to the devisees of the other party or, in the absence of a will, the estate of each party shall descend to the heirs of that party as if the marriage had not taken place.  In either event the estate shall be free of any claim or demand of inheritance, dower, courtesy, elective share, family allowance or any spousal or other claims given by law, irrespective of the marriage and any law to the contrary.  Each of the parties has an existing will that shall remain in effect, regardless of the marriage until changed by that party.  Neither party intends by this Agreement to limit or restrict the right to give or receive a testamentary gift from the other.  Either of the parties may elect to make a gift to the other by will without invalidating this paragraph and may thereafter change or eliminate the gift by a codicil or another will without in any way affecting the continued effectiveness of this Agreement.  In addition, both the Husband and the Wife hereby waive all claims and rights to be appointed as personal representative of the spouse’s estate, and shall only accept said position if designated by will to do so.

Any bequest made by one party to this agreement to the other party in a Last Will and Testament preceding a legal termination of the marriage shall be deemed null and void and revoked and renounced and, upon the death of either party, the survivor, at the written request of the decedent’s legal representative, shall promptly execute, deliver and file whatever documents are required to effectuate said renunciation.  Legal termination, as hereinabove referred to, shall be deemed to be the entry of a valid divorce decree or judgment. 

i. Release:  Except as otherwise provided in this Agreement, each party releases all claims or demands in the property or estate of the other, however and whenever acquired, including acquisitions in the future.

j. Tax Returns:  It is agreed and understood between the parties that it is their intention to file individual federal and state income tax returns unless there is subsequent agreement between them to file jointly.  It is agreed and understood between the parties that they shall hold harmless and indemnify the other from any liability or responsibility arising from their individually filed tax returns.  Itemized deductions shall be taken by the individual who has paid for the expenses leading to the deduction either by virtue of earnings which may have been placed into a joint account or actual payments which were made from an individual account by that party.

k. Documents:  Each party shall, upon request of the other, execute, acknowledge and deliver any additional instruments as may be required by the laws of any jurisdiction now in effect or hereafter enacted which may affect the property rights of the parties as between themselves or with others and for the purposes of giving effect to the terms and provisions of this agreement.

l. Marriage Dissolution:  If the marriage of the parties is dissolved, this Agreement shall govern all of the rights to property; alimony of all types including but not limited to, permanent alimony, limited duration alimony, rehabilitative alimony and reimbursement alimony; equitable distribution; property settlement; costs and attorneys’ fees.  If dissolution proceedings are filed by either party, both parties will ask the Court to approve this Agreement.

m. Dissolution Claims: If the marriage is dissolved, subject to the provisions contained herein, each party releases the other of any right to claim alimony of all types including but not limited to, permanent alimony, limited duration alimony, rehabilitative alimony and reimbursement alimony and; property; remuneration; support; equitable distribution of assets unless jointly held, whether considered marital or not; or other claims which may otherwise be asserted in a dissolution of marriage, including attorneys’ fees and costs from the other party, both temporary and upon entry of a final judgment.

n. Equitable Distribution of Joint Assets:  In the event of dissolution of the marriage, it is agreed that any assets held jointly by the parties shall be divided equally between the parties upon the termination of the marriage by the court.  It is further agreed that all liabilities incurred jointly by the parties shall be divided equally by the parties upon the termination of the marriage by the court.  This shall constitute the equitable distribution of the assets of the parties upon termination of marriage.

o. Joint Assets Upon Death:  Any assets held by the parties in joint names with right of survivorship at the time of the death of either party shall become the sole property of the survivor at said time.

p. Residence:  Husband acknowledges that Wife owns the residence located at 157 Community Circle in the Township of Old Bridge, County of Middlesex and State of New Jersey, where he and Wife expect to reside immediately after the marriage.  In the event one of the parties files for separation or dissolution, within thirty (30) days after the filing of said separation or dissolution, Husband shall remove himself and his property from the residence and give Wife all keys thereto, and consents that thereafter Wife shall have exclusive use and possession of all other rights pertaining to such residence.  In the event of Wife’s death, Husband shall be allowed to remain in the residence for a period of time not to exceed five (5) years.  During said period of time Husband shall be responsible for any mortgage payments, taxes, insurance, condominium maintenance payments, assessments, utilities, telephone payments and shall reside in the residence by himself.  Thereafter Husband shall remove himself and his property from the residence and give the personal representative of Wife’s estate all keys thereto as the Estate of the Wife shall be the owner of the residence upon Wife’s death.  In the event that Husband cohabitates, as defined by New Jersey law, with another individual during the aforementioned five (5) year period of time, the Estate of the Wife shall be entitled to immediate possession of the residence. 

q. Attorneys Fees / Court Costs:  Each party shall be individually responsible for their own attorneys fees and court costs which may be incurred by them in connection with any lawsuit instituted for dissolution of marriage, alimony unconnected with divorce or dissolution, or separate maintenance, and neither shall make claim against the other for attorneys fees, alimony, support, equitable distribution of property or court costs, it being understood and agreed that each party shall pay his or her respective attorneys fees and/or court costs.

In the event either party contests this agreement or seeks relief in any Court contrary to the terms of this agreement, it is agreed that said party shall be responsible for the attorney’s fees and costs incurred by the other party in defending the action.

8. CHILD SUPPORT: Nothing in this Agreement shall be construed to limit or in any way decrease any child support which might be awarded pursuant to a dissolution of the marriage, should a child or children be born to or adopted by the Parties together.  

9. LIFE INSURANCE: Pursuant to the husband’s Property Settlement Agreement of his first marriage, the current life insurance policies with Banner Life in the amount of $100,000.00 and Allstate Insurance in the amount of $10,000.00 listing Eileen Freedman Johnson as the beneficiary shall remain.  Upon the death of Eileen Freedman Johnson, the beneficiaries shall be amended as follows: 50% to Eileen S. Matthews and 50% to the husband’s children, Robin and Michele.  Upon the parties reaching a continuing marriage of ten (10) years, the life insurance policies shall be amended to list Eileen S. Matthews as the sole beneficiary.

10. BINDING EFFECT:  This Agreement shall inure to the benefit of and shall be binding upon the heirs, devisees and Personal Representatives of the parties.

11. ENTIRE AGREEMENT:  This Agreement contains the entire understanding of the parties with respect to the mutual rights of each of them in the property and estate of the other, and no representations or promises have been made by either party except as stated or contained herein.

12. GOVERNING LAW:  The domicile of the Parties at the time of the execution of this Agreement is the State of New Jersey, and the law of such state shall govern.  The Parties recognize that they may change their domicile to another jurisdiction by agreement.  The Parties agree that all questions arising under or with respect to this Agreement and its interpretation or enforceability shall be governed by the substantive laws of the State of New Jersey, the state where Husband and Wife are presently residing and the State where the Parties expect to reside after the marriage. 

13. INVALIDATION:  In the event any part, portion, sentence or wording of this Agreement shall be declared void as against public policy, only that part, portion, sentence or wording shall be considered invalid, and the Agreement not otherwise affected by said declaration shall remain in full force and effect.

14. AMENDMENT This Agreement may be amended at any time, but only in the same manner and with the same formality with which the original document was executed.  No verbal modifications shall be enforceable.

15. ATTORNEY’S CERTIFICATION:  The undersigned hereby certifies that he is an attorney at law, duly licensed and admitted to practice in the State of New Jersey; that he has been retained by STUART M. JOHNSON, referred to in this Agreement as Husband, and that he has advised such party with respect to this Agreement and explained to him the meaning and legal effect of it; and that he has acknowledged his full and complete understanding of the said Agreement and its legal consequences, and has freely and voluntarily executed the Agreement in my presence.

LAW OFFICES OF EDWARD R. WEINSTEIN 

Attorney for Stuart M. Johnson 

By: _____________________________

      EDWARD R. WEINSTEIN, ESQ.The undersigned hereby certifies that he is an attorney at law, duly licensed and admitted to practice in the State of New Jersey, that he has been retained by EILEEN S. MATTHEWS referred to as WIFE in this Agreement, and that he has explained to her the meaning and legal effect of it; and that she has acknowledged her full and complete understanding of the said Agreement and its legal consequences, and has freely and voluntarily entered into the Agreement.

PARINELLO & NOTO, LLC

Attorney for Eileen S. Matthews

By: ___________________________

      DAVID A. PARINELLO, ESQ.

IN WITNESS WHEREOF, the parties have hereunto set their hands and seals, the day and year first above written.

Signed, sealed and delivered

in the presence of:

_________________________ _____________________________

Witness STUART M. JOHNSON, Husband 

_________________________ ____________________________

Witness EILEEN S. MATTHEWS, Wife

STATE OF NEW JERSEY )

) SS

COUNTY OF MIDDLESEX )

SUBSCRIBED, sworn to and acknowledged before me by STUART M. JOHNSON this 15th day of September, 2003.

___________________________________

A Notary Public of the State of New Jersey

STATE OF NEW JERSEY )

) SS

COUNTY OF MIDDLESEX )

SUBSCRIBED, sworn to and acknowledged before me by EILEEN S. MATTHEWS this 15th day of September, 2003.

___________________________________

A Notary Public of the State of New Jersey