Posts Tagged ‘prenup’

Prenups Made Easy

Monday, March 16th, 2020

For starters, let me be clear that no one (hopefully) gets married with an exit plan…it’s just plain pessimistic, right?  Maybe so, but it is also important to have clarity going into marriage no differently than going into a business arrangement.  I have put together a very straightforward antenuptial agreement (more commonly called a prenup) for your perusal.  It is for informational purposes only and may not suit your situation, always consult with an attorney.  Notice that custody issues are not present.  The reason for that is that the court will not honor these…they only follow existing law and any contract regarding custody and visitation is not valid.  So, take a look.  I hope it is helpful. 

THIS AGREEMENT AND CONTRACT made on this the ____ day of ___________ 20____, by and between                         (hereinafter from time to time referred to as Husband), and               (hereinafter from time to time referred to as Wife), 

W I T N E S S E T H: 

WHEREAS, the parties hereto contemplate legal marriage in the State of ___________________, and residence in the State of Mississippi; and, 

WHEREAS, it is their mutual desire to enter into this agreement and contract whereby they will regulate their relationships toward each other with respect to certain property owned by the parties and in which they have an interest; and, 

NOW, THEREFORE, for and in consideration of their marriage and the premises herein, it is agreed as follows: 

Wife, now owns in her own right certain property and owes certain debt described and valued in that attachment hereto, Exhibit  A,  consisting of 1 page.  

It is mutually agreed and contracted between the parties hereto that the property and debt  described in Exhibit A shall be and does constitute a separate estate and obligation belonging solely to Wife, and Husband shall have no right, claim, interest, or obligation whatsoever in, to, or for any portion of said property and debt. In consideration of said marriage, Husband waives and relinquishes any and all claims to homestead, widowers allowance, right of inheritance, right to renounce surviving spouses will, equitable distribution in case of divorce, (including, but not limited to the marital home doctrine), and any other right in and to the aforesaid property or any additions to or appreciation in said property or any portion thereof and any income generated therefrom, which might have vested in him by virtue of their marriage, in absence of this agreement. 

II 

It is further agreed and understood by and between the parties hereto that in the event Wife, should sell, transfer, swap, trade, or exchange any of the property described in Exhibit A, then the consideration received therefor by Wife, whether cash, personalty, realty, or otherwise, shall be substituted in the place and stead of the property described above, and Husband shall have no right, claim, or interest in and to the substituted property or its income. 

III 

Husband, now owns in his own right certain property and owes certain debt described and valued in that attachment hereto, Exhibit  B,  consisting of 1 page. 

It is mutually agreed and contracted between the parties hereto that the property and debt  described in Exhibit B shall be and does constitute a separate estate and obligation belonging solely to Husband, and Wife shall have no right, claim, interest, or obligation whatsoever in, to, or for any portion of said property and debt. In consideration of said marriage, Wife waives and relinquishes any right in and to the aforesaid property or any additions to or appreciation in said property or any portion thereof and any income generated therefrom, which might have vested in her by virtue of their marriage, in absence of this agreement. 

IV 

           It is further agreed and understood by and between the parties hereto that in the event Husband, should sell, transfer, swap, trade, or exchange any of the property described in Exhibit B, then the consideration received therefor by Husband, whether cash, personalty, realty, or otherwise, shall be substituted in the place and stead of the property described above, and Wife shall have no right, claim, or interest in and to the substituted property or its income. 

The parties hereto mutually agree that any and all property hereafter owned or acquired after their marriage (with the specific exceptions of the property owned by Wife and Husband and listed in those attachments hereto plus any additions to or appreciation [including active and passive appreciation] in said property and any income generated therefrom) shall constitute the parties marital estate, and shall pass outside this contract and agreement.  As concerns such property acquired by the parties after their marriage, each party shall retain such rights as vested in them by virtue of such marriage, including but not limited to all homestead and inheritance rights. 

VI 

Each party hereto acknowledges that the other shall have the full right and authority, in all respects the same as he or she would have if unmarried, to use, enjoy, manage, convey, mortgage, and dispose of all of his or her present and future property and estate and its income as described in Exhibit A and B hereto, of every kind and character, including the right and power to dispose of same by last will and testament. 

VII 

In case of a divorce, whether agreed to by the parties or pursuant to order of a court of competent jurisdiction, Husband agrees to provide the Wife the sum of $20,000 within 6 months to the wife as lump sum alimony if the parties have one child in their custody, and an additional $10,000 for each child thereafter.  Child support is separately by statute provided under MS Code Annotated (1972, as amended). 

In addition, in case of a divorce, whether agreed to by the parties or pursuant to order of a court of competent jurisdiction Husband agrees to provide Periodic Alimony to the wife for the period of one year in the amount of %15 of gross adjusted income as defined by applicable statute after issuance of a final decree of divorce so long as she remains unemployed full-time, defined as 32 hours minimum per week.    

VIII 

In case of divorce, Husband agrees that he will not be entitled to any of the property or any additions to or appreciation therein or income therefrom as set forth in Wife’s financial statement attached as Exhibit A and that said property, or the worth thereof shall not be considered in determining the amount of relief to which he may be entitled, and he reiterates that he is foregoing, relinquishing, and waiving any and all claims for alimony, either lump sum or periodic, and separate maintenance or other support from Wife. 

In case of divorce, Wife agrees that she will not be entitled to any of the property or any additions to or appreciation therein or income therefrom as set forth in Husband s financial statement attached as Exhibit B, and that said property, or the worth thereof shall not be considered in determining the amount of relief to which she may be entitled, and she reiterates that she is foregoing, relinquishing, and waiving any and all claims for alimony, either lump sum or periodic, and separate maintenance or other support from Husband. 

IX 

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, and neither party intends by this agreement to limit or restrict in anyway the right and power to receive any such transfer or conveyance from the other. 

           This agreement is entered into by each party with the full knowledge that the other, has a separate estate, and no claim or demand can be predicated upon the fact that there has been any misrepresentation or concealment as to the amount and condition of said separate estate. It is expressly acknowledged by each party that he and she consider the amount fixed herein to be the sufficient participation in the estate of the other. It is expressly stated that each party hereto has sufficient general knowledge of the condition of the estate of the other. It is expressly stated that each party hereto has confidence in his and her own ability to hereafter acquire property in his or her own right to which he or she may look for support and inheritance to justify making and entering into this agreement. 

XI 

           This agreement is to become effective only upon the date of the marriage of the parties hereto. 

XII 

Each party acknowledges that he or she has had the opportunity to be represented in the preparation of this agreement by counsel or other advisers of his or her own choosing; that he or she has read this agreement; and, is fully aware of the contents and consequences of this agreement.  Husband is represented by Matthew Poole, Esq.  Tax advice is rendered to neither party. 

XIII 

This agreement shall be binding upon the heirs, legatees, devisees, and personal representatives of each of the parties. 

XIV 

The parties agree that should any paragraph or section of this agreement be held invalid by any court, such holding shall not affect the validity or enforcement of the remaining sections or paragraphs. 

XV 

This agreement and contract consisting of 8 pages plus exhibits thereto, constitutes the sole and entire agreement of the parties hereto, and all representations or agreements prior to or contemporaneous herewith are hereby merged herein. Further, this agreement and contract can only be changed or modified by a writing executed with the same formalities as the instant agreement and contract. 

WITNESS OUR SIGNATURES on this the _____ day of _____________, 20_____. 

    ____________________________________ 

                                                                 Husband  

____________________________________ 

                                                                 Wife 

STATE OF MISSISSIPPI 

COUNTY OF _________________ 

This day personally appeared before me, the undersigned notary public in and for the state and county aforesaid, the within named_____________________, who acknowledged before me that he signed, executed, and delivered the above and foregoing Antenuptial Agreement on the day and date therein mentioned for the purposes therein stated, as his own voluntary act and deed. 

Given under my hand and official seal on this the ______ day of _____________, 20_____. 

_______________________________________ 

NOTARY PUBLIC 

My Commission Expires: 

STATE OF MISSISSIPPI 

COUNTY OF ______________ 

This day personally appeared before me, the undersigned notary public in and for the state and county aforesaid, the within named ____________________, who acknowledged before me that she signed, executed, and delivered the above and foregoing Antenuptial Agreement on the day and date therein mentioned for the purposes therein stated, as her own voluntary act and deed. 

Given under my hand and official seal on this the ______ day of _____________, 20_____. 

_______________________________________ 

NOTARY PUBLIC 

My Commission Expires: 

Why Women No Longer Want to be Wives

Wednesday, June 13th, 2018

Should a husband say: “this is my wife, Jessica” or “this is Jessica, my wife?” The debate over this question has largely become irrelevant, as it is now normal for people to say that they don’t want to get married or that they don’t know whether they do or not. In fact, studies from Pew Research Center show that one in four parents in the United States have kids outside of marriage. Considering the common knowledge that approximately 50% of marriages end in divorce, it is understandable that the thought of getting married would cause someone to fear a complicated and stressful separation in the future. Although the possible reasons are infinite, understanding why women initiate divorce more often than men may help to explain the recent avoidance of marriage in general.

According to a study conducted by Michael J. Rosenfeld, an associate professor of sociology at Stanford University, social scientists have proposed several theories to explain why women initiate divorce at a much higher rate than men. The primary theory is that women may be more attune to relationship difficulties and leave a partner when they believe the issues will require significant action to resolve. However, Rosenfeld argues this explanation is not sufficient according to his research as published by the American Sociological Association. Data taken from the national “How Couples Meet and Stay Together” survey from 2009 to 2015 shows that men and women initiate break-ups equally in non-marital relationships, but women initiate 69% of all divorces. Rosenfeld argues that if the sensitivity theory were true then studies would show women initiating break-ups in non-marital relationships as often as in marital relationships (being equally as dissatisfied), but his data proves this far from the case.

Another suggestion explaining why someone chooses to end a marital relationship is the power-differential theory, which states that the spouse with better prospects beyond the current relationship is more likely to file for divorce. This theory is actually counter-intuitive to the proven statistic that women initiate divorce more than men. Husbands are usually older and have traditionally higher incomes than their wives. Studies also show that single men become more attractive to others as they age, whereas single women decline in attractiveness to others as they age. Therefore, this theory suggests that men typically have the “power” in a marital relationship and better prospects following a divorce. If this theory were accurate, men should initiate the greater amount of divorces as time in a relationship passes. Some social scientists twist this theory to suggest that it is actually the lack of power to voice dissatisfaction with a marital relationship driving women to initiate more divorces. However, prior research on this failed to distinguish divorces initiated by the husband from those initiated by the wife. Although Rosenfeld does not believe the power-differential theory accurately describes why women initiate divorce at a higher rate than men, the lack of power suggestion is actually close to his proposition.

Rosenfeld advocates for the theory that the marital institution has been viewed by society as having incredibly asymmetric gender roles for so long that women now dislike the idea of marriage as a whole. The historic notion that a wife’s only purpose is to cook, clean, and take care of children may lead women to assume that their potential and value in a marital relationship is severely limited. Rosenfeld’s theory aligns with many feminists who suggest that these traditional roles still exist because heterosexual couples are especially likely to marry if the man has high earnings. Also, they call attention to the fact that women still adopt men’s surnames even though laws requiring this came to an end in the 1970’s. Regardless of your position on this controversial subject, it is not difficult to see the connection between women who believe that marriage is an oppressive institution and women who initiate divorce. This theory also helps to explain the general apprehension regarding marital commitments and the increased number of children born to unmarried couples.

These reasons women may initiate divorce much more often than men certainly do not account for every instance, but it definitely presents a challenging consideration regarding the fear of marriage. However, maintaining a healthy dose of caution when entering a marital commitment is probably smart in light of divorce statistics. It is also important to note that signing a “prenup” may help to alleviate some of the anxiety surrounding marriage. Although prenuptial agreements are often perceived to be “dooming” a marriage before it even begins, making this agreement may actually offset divorce fears and prevent stress from ruining your joyous occasion.

The Law Office of Matthew S. Poole is well-seasoned to handle divorce and other family law cases. If you have any questions or are in need of an attorney, please don’t hesitate to call us. We would love to help.

Written by Jessica Jasper, J.D. Candidate, Class of 2020, Mississippi College School of Law

Prenuptial Agreements are Always Enforceable, Correct?

Wednesday, December 28th, 2016

In Mississippi, as well as every other state, many couples seek the protections and predictability that can often be offered by entering into a contract prior to marriage, commonly referred to as a prenuptial agreement. While prenuptial agreements are generally valid and enforceable, there are exceptions that a client needs to be aware of as to the terms of that agreement prior to entering into such an contract.

The Mississippi Supreme Court has ruled that any prenuptial agreement is enforceable just as any other contract. However, the execution of the agreement must be deemed to be fair. The general consensus is that fairness indicates that the agreement has to be entered into voluntarily and with full disclosure of both the husband and wife’s financial assets. It’s clear that fairness can encompass many different ideals; however, the providing of entire disclosure as to the parties’ finances and/or the knowledge of each other’s financial state is a paramount concern when entering into a prenuptial agreement. Fairness can also be affected by whether or not the parties are represented by counsel, or whether the parties had time to review the agreement prior to its execution. In other words, if either party is under duress in signing the prenuptial agreement, it is possible that the court may invalidate certain terms or conditions contained in the prenuptial agreement. The education of the parties is also a factor in whether or not the agreement was sufficiently explained or so complicated that an explanation as to the terms was necessary. It is important to note that execution of the agreement could be considered fair by a chancery court even in the case that either side is not represented by counsel.

Our general advice to any client who is seeking the protections of a prenuptial agreement is to contact an experienced Mississippi attorney who is able to guide you through the potential landmines that can occur in the prenuptial contracting process. It is also important that clients recognize that prenuptial agreements have to be consistent with public policy and cannot fly directly in the face of clear statute in state of Mississippi. Some examples of a prenuptial agreement being deemed invalid by chancery court would include not only cases where the contract between the husband and wife are directly inconsistent with Mississippi statute, but also when the parties have contracted to a matter which is deemed at odds with public policy. Although public policy exceptions are less likely to occur, it is important to note that a court always has the ultimate say in determining whether or not the terms of the contract are fair and just. A court could also deem certain terms under a prenuptial agreement be deemed unconscionable. All of the laws and regulations related to any contract also apply to prenuptial agreements. Therefore, prenuptial agreements are not given specific immunity from being deemed invalid by a court simply because the parties agreed to the terms.

If you need assistance in drafting a prenuptial agreement, we are equipped to assist you in that process. We are able to help you consider the factors that may not have been considered to this point, and will be able to draft the contract in such a way that it will be deemed most likely valid if it were challenged in the event of a divorce or separation. If you need assistance with any of these matters, call the Law Offices of Matthew Poole, 601-573-7429.
Law Office of Matthew Poole