Islamic prenuptial agreement
How it actually looks like
“It’s insane to get legally married without an Islamic marriage contract that’s enforceable in court, without a solid prenuptial agreement. Because you are saying that our marriage is surrendering to state judges instead of Islamic rulings.”
Introduction
I've often heard discussions about prenuptial agreements where both sides don't fully understand what they're talking about.
Just as there are differences in inheritance from Western norms, Islamic law also differs in marriage. The Quran mandates a gracious bridal gift from the man to the woman. The Quran instructs men to protect and provide for women, including lodging, clothing, and other essentials. In return, the Quran obligates women to obey their husbands and safeguard their wealth. If her husband is stingy, the Prophet ﷺ permitted her to take reasonably from the husband’s wealth for herself and her children (Bukhari 5634). While the homemaking duties are the woman’s primary responsibility, the Prophet helped with some household chores (Bukhari 5363).
In divorce initiated by men, the Quran mandates the husband is required to provide for her for three months. This differs greatly from the Western courts. For instance, in Florida, alimony can last anywhere from 5 to 25+ years, based on the marriage duration.
In Western law, all property owned by a husband and wife is often viewed as joint property and then divided equally. However, according to the Quran and Hadith, this is not the case. The Quran and Hadith specify that each spouse's wealth remains their individual property, not automatically shared upon marriage.
Compounding this problem, this Western practice involves a sin known as gharar (Ibn Majar 2195 - Sahih). In Islam, joint ownership cannot be based on vague terms. There must be no gharar in property arrangements. Properties must be explicitly categorized at the outset—what belongs to the husband must be clearly defined as his, what belongs to the wife as hers, and what is jointly owned must be explicitly shared with clearly pre-defined percentages of ownership.
You might be curious why an Islamic premarital agreement often doesn’t cover iddah payments. In most cases, the legal divorce process doesn't coincide exactly with the Islamic divorce. Additionally, if the divorce happens during pregnancy, iddah payments extend until the birth. If the divorce is initiated by the woman, she must return the dowry (Bukhari 5273). These factors and more contribute to the complexities around including iddah payments in premarital agreements.
In the Muslim community, many families on the women's side strongly oppose prenuptial agreements. This is understandable, considering the unfair stigma against divorced women remarrying, which is a result of society's rejection of polygamous marriages. These are all consequences of rejecting Islamic norms.
While it's hard to change these mindsets, I hope that as these agreements become more common, the stigma will fade away.
I encourage everyone to pursue it. Even if the other side rejects the contract and you choose to marry anyway, you’ve set a new precedent that may inspire others in the family to follow suit.
Sample template for Islamic premarital agreement
To make sure it’s enforceable, request a Muslim lawyer’s help, obviously
THIS PREMARITAL AGREEMENT made this ___ day of January 2025, by and between HUSBAND currently residing at [Husband’s address] and WIFE presently residing at [Wife’s address]; collectively referred to herein as the “Parties”:
WITNESSETH:
WHEREAS, FIRST PARTY has no children; and
WHEREAS, SECOND PARTY has no children; and
WHEREAS, FIRST PARTY and SECOND PARTY intend to marry one another and intend by this Agreement to establish their rights in the income and assets of each other to the exclusion of any other rights that might be granted by law, recognizing their complete confidence in each other's integrity and good will;
WHEREAS, both Parties to this agreement are presently unmarried, are in good mental and physical condition, and of their own free will intend to marry one another in the near future; and
WHEREAS, FIRST PARTY is presently a State of Florida resident and domiciliary and SECOND PARTY is a resident and domiciliary of the State of Florida, and both Parties hereto desire and shall make the State of Florida to be their principal place of their marital residence, notwithstanding that at the present time and from time to time in the future, both or either may maintain or continue to maintain one or more residences in other states or jurisdictions; and
WHEREAS, each of the Parties owns individually certain real and personal property and has future expectancies for the acquisition and accumulation of additional real and tangible personal property; and
WHEREAS, each Party enters into this Agreement with full knowledge of the extent and approximate present value of all the property and estate of the other, and of all the rights and privileges in and to such property and estate which would be conferred by law upon each in the property and estate of the other by virtue of the consummation of the proposed marriage if this Agreement was not entered into; and
WHEREAS, FIRST PARTY and SECOND PARTY intend to marry in the year of 2025 or at such other time the Parties may agree; and
WHEREAS, FIRST PARTY and SECOND PARTY prior to any marriage may co-habitate and intend by this Agreement to establish their rights in the income and assets of each other to the exclusion of any other rights that might be granted by law, recognizing their complete confidence in each other's integrity and good will; and
WHEREAS, the Parties expressly acknowledge that this Agreement is not entered into for the purpose of facilitating a separation or dissolution of their marriage to each other, but is entered into for the sole purpose of settling their property affairs and support rights and is conducive to the welfare of the Parties and the best purpose of the marriage relationship, and is entered into to prevent strife and to settle questions of marital rights and property rights, thus removing a frequent cause of family dispute, and to secure peace and enhance the prospects for marital harmony; and
WHEREAS, the Parties intend and desire to define their respective rights and claims in the property or estate of the other, or for spousal support (alimony) that each may have or may later acquire as an incident of their marital relationship, if they marry; and more specifically, the Parties desire to settle and adjust their respective rights, titles, interests, and duties arising out of or based in any manner upon their marriage by any statute, law, judicial decision, common law, custom, practice, contract (whether express or implied in fact or in law), or undertaking of any nature or kind whatsoever, whether for purposes of marriage dissolution or testamentary disposition or otherwise; and
WHEREAS, the Parties intend and desire to define their respective rights and claims in the property or estate of the other, or for any type or kind of support (for example, palimony) that each may have or may later acquire as an incident of their cohabitation relationship, if they do not marry; and more specifically, the Parties desire to settle and adjust their respective rights, titles, interests, and duties arising out of or based in any manner upon their not having been married by any statute, law, judicial decision, common law, custom, practice, contract (whether express or implied in fact or in law), or undertaking of any nature or kind whatsoever, whether for purposes of the dissolution of their cohabitation relationship or testamentary disposition or otherwise; and
WHEREAS, both Parties hereto expressly agree that there is no need for alimony, support or maintenance of any kind to one Party by the other in the event of the termination of the marriage by reason of divorce, separation, death, dissolution, or otherwise, and, except as provided herein, that there is no need for any distribution, equitable or otherwise, of property, real or personal (tangible and intangible), to be made by one to the other as a result of the Parties' marriage or relationship to each other; and
WHEREAS, both Parties hereto expressly agree that there is no need for any palimony, support or maintenance of any kind to one Party by the other in the event of the termination of their cohabitation or any pre-marital relationship, and that there is no need for any distribution, equitable or otherwise, of property, real or personal (tangible and intangible), to be made by one to the other as a result of the Parties' marriage or relationship to each other; and
WHEREAS, each of the Parties has been advised by separate legal counsel and fully understands that in the absence of this Agreement, the law would otherwise confer certain rights upon each of them for support and in the property and estate of the other, and that the effect and intent of this Agreement is for both Parties to waive, relinquish and bar all of their respective rights or claims thereto, except as specifically provided for herein; and
WHEREAS, both Parties have entered into this Agreement of their own free will and are not suffering from any undue influence of any sort; and
WHEREAS, the Parties acknowledge that each of them would not enter into the contemplated marriage except for the execution of this Agreement and the expectation that both Parties shall at all times hereafter fully and faithfully perform and be bound by all of the provisions hereof, and the further expectation that both Parties shall at all times hereafter be absolutely and forever precluded and estopped from seeking to receive and from receiving benefits and imposing any obligations on the other, other than as expressly provided for herein; and
WHEREAS, the Parties acknowledge that each of them would not enter into the contemplated cohabitation relationship except for the execution of this Agreement and the expectation that both Parties shall at all times hereafter fully and faithfully perform and be bound by all of the provisions hereof, and the further expectation that both Parties shall at all times hereafter be absolutely and forever precluded and estopped from seeking to receive and from receiving benefits and imposing any obligations on the other, other than as expressly provided for herein; and
WHEREAS, the Parties are desirous of making financial arrangements in the event of the death of either of the Parties, and in the event of a future legal separation or divorce of the Parties, or annulment of their marriage, which provisions they desire to provide for by choice and agreement, and not as a matter of law, statute or otherwise:
NOW THEREFORE, in consideration of the marriage, it is agreed as follows:
1. RECITALS.
The Parties hereby acknowledge and agree that each and every one of the above are not mere recitals but agreements of the Parties and incorporated herein.
2. DEFINITIONS
2.1 For purposes of this Agreement, “separate property” of a party shall include all assets not specifically defined as “Marital Assets” under this Agreement including, but not limited to, the assets of that party acquired prior to the marriage of the parties, together with the income, products, proceeds, enhancements, appreciation, reinvestments and exchanges arising out of or related thereto, whether the same occurred before or during the marriage of the parties, and all assets acquired during the marriage of the parties which are titled in the sole name of that party, together with the income, products, proceeds, appreciation, reinvestments and exchanges arising out of or related thereto.
2.2 For purposes of this Agreement, there shall be no “Marital Assets”, now or in the future, except those assets that the parties hold title as tenancy by the entireties, and which is therefore jointly owned by the HUSBAND and WIFE. All other assets held in the name of either party, regardless of when the assets was acquired or the source of consideration for the acquisition or enhancement of value of the asset, will be the separate property or non-marital asset of the party holding title.
2.3 The parties intend the definitions used herein to be a part of a binding valid written agreement between them, as contemplated by Fla. Stat. 61.075(5)(b)(4), and other applicable law, and they intend hereby to provide a more restrictive definition of “Marital Assets” than that contained in Fla. Stat. 61.075. Any asset acquired by the parties, or either of them, during the marriage of the parties which is titled in the name of the party, shall be deemed to be the separate property (a non-marital asset) of the party in whose name the asset is titled, and shall not be a Marital Asset. This will be true even if funds earned by a party during the marriage were invested in the property, if the property appreciates in value, or if the efforts of one party caused an increase in value of the property during the marriage.
3. CONSIDERATION.
The Parties acknowledge that the provisions of this Agreement and the contemplated marriage are the consideration for this Agreement and are sufficient consideration to support this Agreement.
4. SOLE OWNERSHIP OF ASSETS.
Each of the Parties shall retain sole ownership, control, and enjoyment, during life and at death, of all real and personal property in his or her name alone, and all property in which he or she has a future interest, whether vested or contingent, whether now owned or hereafter acquired (including, without limiting the generality hereof, all rights to future inheritance), including all income hereafter earned thereon and all increments in value thereto, free and clear of any claims whatsoever by the other or by his or her legal representative including but not limited to a guardian, conservator, or committee, which claims each of the Parties specifically and entirely waives during the life of the other. Each of the Parties specifically waives the right to assert in any matrimonial action (such as for a separation or for divorce, declaration of nullity, annulment, or any other final dissolution of marriage however entitled and regardless of the legal fault of either Party) any right to alimony, maintenance or any equitable or legal claim, including without limitation any right to equitable distribution or to property under any community property law, respecting either separate property of the other or any marital property, sole title to which is held by the other, including for example, but without limitation, claims and rights under applicable Florida Statutes and under the similar laws of any other state or country. Each of the Parties shall retain sole ownership, control, and enjoyment of all real and personal property in his or her name alone, and all property in which he or she has a future interest, whether vested or contingent, whether now owned or hereafter acquired (including without limiting the generality hereof all rights to future inheritance), including all income hereafter earned thereon and all increments in value thereto, free and clear of any claims whatsoever by the other or by his or her legal representative including, but not limited to, a guardian, conservator or committee, which claims each specifically and entirely waives.
Without limiting the generality of the foregoing, the property which as of the date hereof is intended to be regarded as being held in the name of FIRST PARTY alone is that property set forth in Schedule A hereof, including all future income and appreciation thereon, the proceeds thereof and any reinvestment thereof in any form; and the property which as of the date hereof is intended to be regarded as being held in the name of SECOND PARTY alone is that property set forth in Schedule B hereof, including all future income and appreciation thereon, the proceeds thereof and any reinvestment thereof in any form.
Each party agrees that he or she shall be solely responsible for the costs and liabilities associated with his or her separate property.
5. WAIVER OF ALIMONY.
This Agreement shall be construed as a settlement Agreement in the event of dissolution of marriage of the parties and shall not be subject to modification by the final judgment or thereafter. If a separation, annulment, dissolution of marriage or divorce proceeding is filed in any state or country between the parties, each party forever waives any right to claim or seek any form of alimony or spousal support, including, but not limited to, temporary alimony, alimony pendente lite, permanent periodic alimony, rehabilitative alimony, bridge the gap alimony, and lump sum alimony. Any rights concerning distribution of property are otherwise covered by this Agreement. Any rights to community property are waived. If the marriage is annulled, dissolved or a decree of divorce entered for any reason, each party agrees that the provisions of this Agreement are in complete settlement of all rights concerning distribution of property and all rights to claim or seek any form of alimony or financial support, except child support for any living minor children of the parties, from the other.
The foregoing paragraph shall not preclude a court having jurisdiction over the parties from adjudicating the joint property rights acquired by them during the marriage pursuant to this Agreement. Except as otherwise provided in this Agreement, each party releases all rights, claims, or demands against the other for all forms of alimony, maintenance, or support, including but not limited to rehabilitative, lump sum, or permanent alimony; support unconnected with dissolution of marriage or divorce; support connected with dissolution of marriage or divorce; special equity in the other party's separate nonmarital property; or a special equity in the other's jointly owned property. This paragraph shall include all rights now existing or that may hereafter be conferred on either party by statute, court decision, or otherwise.
6. MUTUAL RELEASE.
It is mutually agreed that each Party waives, discharges, and releases any and all rights and claims, actual, inchoate, or contingent, in law or equity, which he or she may acquire in the sole and separate property of the other in any jurisdiction by reason of such marriage, including, but not limited to:
1) The right to any exempt property or statutory exemptions.
2) The right of election to take against the Will of the other.
3) The right to a distributive share in the estate of the other should he or she die intestate.
4) The right to any family allowance or year's support or widow's allowance.
5) The right to act as a Personal Representative, Administrator, or Executor of the estate of the other.
6) The right to take as pretermitted spouse.
7) The right to homestead.
8) Community property.
Each Party releases all rights and all claims or demands in the property or estate of the other, however and whenever acquired, including acquisitions in the future. Each of the Parties waives and releases any and all claims which he or she may have or acquire by reason of the marriage upon the death of the other Party (the “deceased Party”) and any and all rights he or she may have or acquire by reason of the marriage upon the death of the deceased Party to any and all property owned by the deceased Party or over which such deceased Party may have a power of disposition (including, without limitation, rights in intestacy, the so-called “right of election,” rights of dower or curtesy, homestead rights, and rights arising under community property laws). This provision is intended to be a complete waiver and release of all of each Party's rights and claims under Florida Statutes, as they presently are and as they may be amended hereafter, and under the comparable laws of any other state or country. This provision is also intended to be a complete waiver and release of all of each Party's rights and claims that might arise because of their cohabitation relationship under the laws of any state or any country. To that end, any provision dealing with the waiver of rights that may arise upon marriage of the Parties or upon the dissolution of marriage shall be read and construed to apply the waiver of rights that arise by way of co-habitation, including, but not limited to so-called “palimony.”
This provision shall serve as an absolute bilateral waiver of the right of election under Fla. Stat. § 732.201 et seq., as the same may be amended from time to time, or any equivalent provision under the laws of any other jurisdiction. Each Party acknowledges that if the other were to die, whether testate or intestate, during marriage, the share of the decedent's estate to which the surviving Party would be entitled or could assert a right would, except for this Agreement, be greater than provided in this Agreement. Provided that the other Party shall not have breached this Agreement, each Party agrees that he or she shall not contest the validity of any Will or Trust of the other Party, including any Will or Trust now in existence or any Will or Trust of the other Party to be probated and Letters of Administration or other similar documents to be issued thereon.
In addition, each party specifically waives any right he or she may have or acquire by statute or operation of law in the other's Individual Retirement Account (IRA), Keogh, pension, profit sharing, or any retirement fund account and agrees to execute and deliver at any time or times any and all instruments necessary or advisable to effect such waiver. Each shall have the free and unrestricted right to dispose of his or her IRA, Keogh, pension, profit sharing or any retirement fund account as if he or she were not married. Without limiting the generality of the foregoing, SECOND PARTY agrees to execute forthwith upon his marriage to FIRST PARTY all documents necessary or advisable to effect such waivers. In the event that FIRST PARTY dies before SECOND PARTY has executed such documents, SECOND PARTY agrees to disclaim any interest to which she would not have been entitled, if she had executed such documents before FIRST PARTY's death, and to pay over to FIRST PARTY's estate any amounts which she receives, provided that if SECOND PARTY's receipt of any amount is not due to any fault or delay of SECOND PARTY in executing such documents or disclaiming such interests, FIRST PARTY's estate shall reimburse SECOND PARTY for any income taxes incurred by SECOND PARTY's receipt of such amount.
Without limiting the generality of the foregoing, FIRST PARTY agrees to execute forthwith upon her marriage to SECOND PARTY all documents necessary or advisable to effect such waivers. In the event that SECOND PARTY dies before FIRST PARTY has executed such documents, FIRST PARTY agrees to disclaim any interest to which he would not have been entitled, if he had executed such documents before SECOND PARTY's death, and to pay over to SECOND PARTY's estate any amounts which he receives, provided that if FIRST PARTY's receipt of any amount is not due to any fault or delay of FIRST PARTY in executing such documents or disclaiming such interests, SECOND PARTY's estate shall reimburse FIRST PARTY for any income taxes incurred by FIRST PARTY's receipt of such amount.
7. DEBTS.
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 prior written consent. If a debt or obligation of one Party is asserted as a claim or demand against the property of the other without his or her prior written consent, the Party who is responsible for the debt or obligation hereby indemnifies the other Party from the claim or demand, including the indemnified Party's costs, expenses, and attorneys' fees. In the event of the Parties' separation, divorce, or a dissolution or annulment of their marriage, each Party's own individual debts, obligations, or liabilities shall remain individual debts, obligations, or liabilities of such Party and such Party shall not seek reimbursement from the other Party nor shall such Party assert such debt, obligation, or liability as a claim against the other Party.
8. RIGHT TO DEVISE PROPERTY.
It is mutually agreed that the provisions of this Agreement place no restrictions on either Party's right to make any transfers of property which he or she may desire to make at any time during his or her life. Notwithstanding any other provision of this Agreement, either Party may provide benefits for the other Party and such other Party shall have the rights to such benefits whether passing by Will, revocable trust, beneficiary designation, by operation of law or otherwise. If spousal joinder is required, the parties shall cooperate with each other fully with respect to executing any documents required for either Party to make any transfers of property which he or she may desire to make at any time during his or her life.
9. LEGAL SEPARATION OR DISSOLUTION.
If either party files a petition for legal separation or dissolution of marriage, or commences any other legal action affecting the rights, relationship, or status of the parties:
9.1 FIRST PARTY agrees in the division and distribution of the parties' marital estate not to claim, seek, or demand all property, assets, income, or interests acquired by, owned by, held by, titled to, held in trust for the benefit of SECOND PARTY, or otherwise possessed by or attributable to SECOND PARTY prior to and after the parties' marriage (and all related current and future income, appreciation, and increases in value thereto, whether or not commingled with and/or converted or transmuted into other assets and/or income) (including but not limited to property identified as Schedule “B” to this Agreement and all related current and future income, appreciation, and increases in value thereto, whether or not commingled with and/or converted or transmuted into other assets and/or income), whether such premarital and post-marital property, assets, income, or interests, and/or all related income, appreciation, and increase in value of such property, assets, income, or interests results from inheritance, gift, trust, conveyance, survivorship, market conditions, SECOND PARTY'S efforts, FIRST PARTY'S efforts, the joint efforts of the parties, purchase, acquisition, sale, exchange, conversion, transformation into a successor tangible or intangible property interest or interests, transformation into successor, affiliate, and/or related businesses, business growth, appreciation, investment, reinvestment, transmutation, interest, accession, increments, commingling, proceeds, income, earnings, judgments, settlements, or otherwise.
9.2 SECOND PARTY agrees in the division and distribution of the parties' marital estate not to claim, seek, or demand property, assets, income, or interests acquired by, owned by, held by, titled to, held in trust for the benefit of FIRST PARTY, or otherwise possessed by or attributable to FIRST PARTY prior to and after the parties' marriage (and all related current and future income, appreciation, and increases in value thereto, whether or not commingled with and/or converted or transmuted into other assets and/or income) (including but not limited to property identified as Schedule “A” to this Agreement and all related current and future income, appreciation, and increases in value thereto, whether or not commingled with and/or converted or transmuted into other assets and/or income), whether such premarital and post-marital property, assets, income or interests, and/or all related income, appreciation, and increases in value of such property, assets, income or interests results from inheritance, gift, trust, conveyance, survivorship, market conditions, FIRST PARTY'S efforts, SECOND PARTY'S efforts, the joint efforts of the parties, purchase, acquisition, sale, exchange, conversion, transformation into a successor tangible or intangible property interest or interests, business growth, appreciation, investment, reinvestment, transmutation, interest, accession, increments, commingling, proceeds, income, earnings, judgments, settlements, or otherwise.
9.3 Each party warrants and represents to the other party that he or she shall not claim, seek, or demand from the other party temporary spousal maintenance, post-dissolution spousal maintenance, attorneys' fees, and/or litigation costs in the event a petition for legal separation, petition for dissolution of marriage, or any other judicial proceeding is commenced which contemplates in any way a change in the status of the parties' personal relationship and/or marriage.
9.4 Notwithstanding any other provision of this Agreement, if FIRST PARTY or SECOND PARTY files for divorce (or other proceeding which would result in the termination of their marriage or in legal separation), in the event that either party is designated as a beneficiary of the other's IRA, Keogh, pension, profit sharing or any retirement fund account, and either FIRST PARTY or SECOND PARTY have not previously complied with the provisions of Section 4, then he or she agrees to sign whatever documents are necessary or advisable, to waive or release any right or interest conferred therein. In addition, each agrees to sign whatever documents are necessary or advisable to waive or release any right or interest which he or she may have in such property by statute or operation of law. If either party dies before the other party has executed such documents, or if for any reason a party receives any such benefits, the survivor agrees to pay over to the deceased spouse's estate all amounts which he or she receives, as if he or she had executed such documents.
10. CONTROL OF SEPARATE PROPERTY.
Each party shall have the exclusive use, management, control, and benefit of his or her separate property, with the right to sell, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, pledge, convey, or otherwise dispose of the same in any manner whatsoever. If spousal joinder is required, the parties shall cooperate with each other fully with respect to executing any documents required for either Party to accomplish any of the aforementioned transactions.
11. JOINT PROPERTY.
During the marriage, the Parties may acquire real, tangible, intangible or personal property as joint property, taking title in forms such as “tenants by the entireties,” “joint tenants with right of survivorship,” or any other form of joint ownership recognized under applicable law. For the purposes of this Agreement, such property shall be referred to as a "Marital Asset," less and except any real property which shall serve as the Parties’ marital home at the time any separation, divorce, or a dissolution or annulment of their marriage may occur, which shall be governed by the terms of Paragraph 12 herein.
11.1 Agreement on Ownership Proportions. Prior to the acquisition of any Marital Asset, the Parties shall agree in writing on the ownership proportions to be allocated to the FIRST PARTY and the SECOND PARTY, respectively. Each written agreement concerning ownership proportions shall apply exclusively to the particular property referenced therein and shall not establish any presumption or precedent for future acquisitions of joint property or Marital Assets. In the event of the Parties' separation, divorce, or a dissolution or annulment of their marriage, each Marital Asset shall be divided between the Parties in accordance with their respective ownership proportions.
In the absence of a written agreement for any specific Marital Asset, it shall be presumed that, upon the Parties' separation, divorce, or a dissolution or annulment of their marriage, such property shall be divided equally (50/50) between the Parties.
11.2 Survivorship Rights and Purchase Options. If one Party (the “deceased Party”) dies during the marriage, the surviving Party shall have a right of first refusal to purchase the deceased Party’s interest in any Marital Assets. The surviving Party must notify the fiduciary of the deceased Party’s estate in writing of their intent to exercise this right within six (6) months of the deceased Party’s death. The purchase price shall equal the deceased Party’s respective ownership proportion of the fair market value of the Marital Asset as determined in the Federal Estate Tax (and Generation-Skipping Transfer Tax) Return, Form 706. Payment of the purchase price shall be made no later than eight (8) months following the death of the deceased Party.
If the fair market value of the property is subsequently adjusted during Federal Estate proceedings, any overpayment or underpayment shall be reconciled. The Estate of the deceased Party shall refund to the surviving Party the amount by which the deceased Party’s respective ownership proportion of the finally determined fair market value exceeds the payment made, or the surviving Party shall pay to the Estate of the deceased Party the amount by which the deceased Party’s respective ownership proportion of the finally determined fair market value is less than the payment made.
If the surviving Party does not exercise the right of first refusal within six (6) months of the deceased Party’s death, the Estate of the deceased Party shall have the option to purchase the surviving Party’s interest in any Marital Assets under the same terms and conditions.
12. MARITAL HOME.
The Parties anticipate that any real property intended to serve as the marital residence (hereinafter referred to as the “marital home”) shall be acquired and titled in both of their names as Husband and Wife. Notwithstanding any differences in their respective financial contributions toward the acquisition, maintenance, or improvement of the marital home, the Parties agree that, in the event of separation, divorce, dissolution, or annulment of their marriage, the marital home shall be divided equally (50/50) between them.
13. FINANCIAL DISCLOSURE.
Each Party has independent means and is not relying on the financial means of the other. Each Party is aware of the right to a full financial disclosure by the other; disclosure statements have been exchanged simultaneously with the execution of this Agreement between the Parties, the receipt of which is hereby acknowledged by each and copies of which are attached hereto as Schedules A and B; and each is satisfied and warrants that the appropriate disclosure has been made. Each Party further acknowledges that he or she will not allege in any matrimonial action that he or she was given inadequate disclosure with respect to such inheritances.
14. INCOME TAX AND PROPERTY TAX RETURNS.
Each party shall be solely responsible for his or her individual taxes and return filings and each party assumes no liability for the other's taxes that were due and owing prior to the marriage of the parties. Neither Party shall be liable for any taxes assessed against the separate property of the other. Neither Party shall be liable for taxes assessed against the separate income of the other, including income earned on a Party's separate property as well as the wages and other employment income of such Party.
The parties may file either separate or joint federal and state income tax returns with respect to any taxable year ending during their marriage, as they shall agree. If the parties cannot agree on the method of filing, then each of the parties shall file separate income tax returns.
In the case joint income tax returns are filed, each Party shall be liable for and pay his or her pro rata share of all income taxes due and payable by virtue of any joint return, and provided further, however, that in no event shall either Party be liable for or pay more income tax by virtue of the said joint return than he or she would have paid if he or she had filed a separate income tax return. If the parties file joint income tax returns, each party shall be responsible for paying that portion of the tax shown on such joint returns, as finally determined for federal and state income tax purposes, that is equal to the his or her pro rata share of all income taxes due and payable by virtue of any joint return. No reimbursement or payment right shall arise if one party would have no income tax liability on a separate return and the other party benefits by using the parties' deductions and credits on a joint return. Each party shall be entitled to credit against his or her final income tax liability any prepayment of income taxes (including withholding and/or estimated tax payments) made by such party on account of the income taxes for any year in which a joint return of the parties is filed, and any refund shall be made to the party who made prepayment in excess of his or her final tax liability. The parties shall cooperate with each other fully with respect to the preparing and filing of their tax returns (whether the same are filed jointly or separately). Each party agrees to defend, indemnify, and hold the other harmless of and from any and all liability, loss, damage, claims, suits, costs, or expenses which may arise from the filing of a joint return and which is attributable to the failure of a party to properly report his or her income, exemptions, exclusions, or deductions, whether resulting from an omission or misstatement of any such item(s) or for any other reason.
15. INDEMNIFICATION.
In the event of a breach by either party or if, for any reason, this Agreement is not enforced according to its terms and conditions, then each party agrees to restore the other party (or his or her estate) to the status the other would have attained had this Agreement not been breached or had this Agreement been enforced according to its terms and conditions, and the breaching party shall be liable for the reasonable attorneys' fees of the non-breaching party and for all other costs incurred by the non-breaching party for the enforcement of this Agreement.
16. NECESSARY DOCUMENTS.
Each party shall, at the request and expense of the other, execute, acknowledge and deliver any additional instruments that may be reasonably required to carry the intention of this Agreement into effect, including such instruments as may be required by the laws of any jurisdiction, now in effect or hereafter in effect, which may affect the property rights of the parties as between themselves or with others. 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 attorneys' fees. This paragraph shall not require a Party to execute a promissory note, guaranty, or other evidence of debt for the other Party. If a Party executes a promissory note, guaranty, or other evidence of debt for the other Party, the other Party hereby indemnifies the Party executing the promissory note or other evidence of debt from any claims or demands arising from the execution of this instrument. Execution of any instrument shall not give the Party executing it any right or interest in the sole and separate property of the Party requesting execution.
17. INDEPENDENT COUNSEL.
[HUSBAND ATTORNEY] has independently advised FIRST PARTY and SECOND PARTY has been independently advised by [WIFE ATTORNEY], Esq. of [WIFE LAW FIRM NAME] in [CITY, STATE].
18. ADEQUATE TIME TO REVIEW AGREEMENT.
Each Party acknowledges that the context and meaning of this Agreement has been carefully considered by her or him and that each is making this Agreement of his or her own free will. Each Party acknowledges that he or she has had a more than adequate period of time to review and carefully consider the provisions of this agreement. Each Party acknowledges that he or she has not been subject to any pressure, duress, or intimidation to execute this agreement and entered into this agreement voluntarily and of his or her own free will and volition.
MORE LEGAL JARGON.
19. FULL REVIEW. FIRST PARTY and SECOND PARTY also acknowledge that each has fully read, reviewed, analyzed, and considered the effect of this Agreement, and enters this Agreement freely and voluntarily.
20. EACH PARTY TO BEAR EXPENSES. Each Party agrees that he or she shall have no liability for any attorneys' fees or expenses incurred by the other in connection with this Agreement, whether incurred prior to or following the date of this Agreement or the termination of the marriage, and each hereby holds the other harmless and free from liability for any and all legal fees or costs which may have been or may be incurred by her or him in connection with the negotiation, preparation, and enforcement of this Agreement, except if there is a breach thereof. In the event of a breach of this Agreement as determined by a court of competent jurisdiction, the Party charged with the breach shall be responsible for reasonable attorneys' fees and costs incurred by both Parties as a result of the proceeding brought to enforce the Agreement's terms.
21. ENTIRE UNDERSTANDING. This Agreement contains the entire understanding of the Parties. Each Party will take any and all further steps needed to carry out this Agreement. If the marriage does not take place, however, this Agreement shall be of no effect; provided, however, that the provisions of this Agreement relating to cohabitation shall survive.
22. MARRIAGE DISSOLUTION. If the marriage of the Parties is dissolved or if the Parties separate, this Agreement shall govern all the rights to property, remuneration, alimony (temporary, rehabilitative, lump sum, permanent or otherwise), equitable distribution, property settlement, costs, suit money, or attorneys' fees, and separate maintenance or support, connected or unconnected with dissolution of marriage or divorce. If either Party files dissolution proceedings, both Parties shall ask the Court to approve this Agreement and incorporate this Agreement into the divorce judgment or decree. This Agreement shall not however be merged into such judgment or decree and shall survive such judgment or decree to be binding and conclusive on the Parties.
23. ENFORCEMENT OF AGREEMENT. Both Parties do further agree to indemnify the other Party hereto for all expenses, costs, and attorneys' fees made necessary by the bringing of any suit or proceeding to enforce the carrying out of any of the terms of this Premarital Agreement, should the other Party bringing or defending any such action or proceeding be successful therein.
24. LEGAL ACTION TO CHALLENGE AGREEMENT. In any action or proceeding challenging the validity of this Agreement, the defending party, upon proper pleading, shall first be entitled, as a matter of absolute right, to an immediate marriage dissolution or divorce on a bifurcated basis. Then, the validity of this Agreement shall next be adjudicated by the court on a bifurcated and expedited basis, prior to the determination of any other claims or rights. Until the validity of this Agreement is fully adjudicated, all discovery shall be strictly limited to matters relating solely to the issue of the validity of this Agreement. In the event either party challenges the validity of this Agreement in any action or proceeding, including, but not limited to, any action for declaratory judgment, marriage dissolution or divorce, the prevailing party shall be entitled to all reasonable attorney’s fees, suit monies and costs incurred in connection with that portion of such action or proceeding challenging this Agreement.
25. BINDING EFFECT. This agreement shall bind and inure to the benefit of the parties to it, and of their respective heirs, executors, administrators, personal representatives, successors, and assigns.
26. SEVERABILITY. If any provision of this Agreement is held to be illegal, invalid, unenforceable or against public policy, the remaining provisions of this Agreement shall remain valid and enforceable.
27. COMPLETENESS. This Agreement contains the entire understanding of the parties, and no representations, covenants or promises, written or oral, express or implied have been made except as contained herein. This Agreement supersedes any previous discussions, negotiations, or agreements between the parties, if any, with respect to the property subject to this Agreement. No representation or agreement that is not incorporated herein is valid.
28. AMENDMENT. This Agreement contains the entire Agreement between the Parties and shall not be changed except by a writing signed by both Parties, and witnessed and acknowledged in the same fashion, as is this Agreement. This Agreement shall be construed as a Settlement Agreement in the event of a dissolution of the marriage of the Parties and shall not be subject to modification by Court order, final judgment, or any subsequent proceeding whatsoever, and each Party specifically waives his or her right to modification under any statute of any jurisdiction as that statute now exists or as may be amended from time to time.
29. MARITAL SITUS. The contemplated situs of the marriage of the Parties to this Agreement shall be in the State of Florida, and the Parties hereby agree this Agreement shall be construed under and governed by the laws of the State of Florida, notwithstanding the legal residence or domicile of either or both of the Parties in the future. This Agreement shall bind and benefit the Parties' respective heirs, legal representatives, and assigns. In the event that a court of competent jurisdiction finally determines that any provision, term, or condition of this Agreement is illegal, invalid, or void, this Agreement shall be read as if such illegal, invalid, or void provisions were not a part hereof.
30. GOVERNING LAW. The laws of the State of Florida shall govern this Agreement.
31. REPRESENTATIONS AND WARRANTIES. FIRST PARTY and SECOND PARTY hereby warrant and represent that each has provided to the other all information concerning his or her financial circumstances including, without limitation, information regarding his or her assets, liabilities, income, and expectancies. Each warrants and represents that the information set forth in Schedules “A” or “B,” attached hereto and incorporated by reference herein, is a full and complete disclosure of his or her financial circumstances, including without limitation his or her assets, liabilities, income, and expectancies as of the date hereof.
FIRST PARTY and SECOND PARTY hereby warrant and represent that each has been afforded ample opportunity to inquire and investigate further the financial circumstances of the other prior to the execution of this Agreement and that after being afforded such opportunity, each knowingly waives his or her rights to further inquiry, discovery, and investigation.
FIRST PARTY and SECOND PARTY hereby warrant and represent that each enters into this Agreement of his or her own accord and as a result of his or her own free judgment with the advise of independent counsel of his or her own choosing. Each acknowledges that he or she has been fully informed of all rights and liabilities, which exist in the absence of this Agreement, and as a result of this Agreement.
FIRST PARTY and SECOND PARTY each acknowledge that he or she has carefully considered the projected income, past income, financial resources, liabilities, assets, and expenses of the other party and herself or himself and each has considered the effect of this Agreement on each of their estates.
FIRST PARTY and SECOND PARTY acknowledge that each has considered the fairness of this Agreement in light of his or her age, business acumen, degree of education, intelligence, and literacy, and prior respective circumstances including without limitation, his or her worth, family ties, and commitments.
FIRST PARTY and SECOND PARTY accept the provisions of this Agreement in full and final settlement and satisfaction of all claims and rights which either may have (or hereafter acquire) against the other for his or her support and maintenance or for a divisions of property. Each party fully discharges the other from all such claims and demands, except as otherwise provided in this Agreement.
Each acknowledges that he or she has executed this Agreement after having read this Agreement paragraph by paragraph prior to its execution.
FIRST PARTY and SECOND PARTY hereby warrant and represent that each shall not attempt to have this Agreement, or any portion hereof, set aside or determined to be null, void, or otherwise invalidated except in the case of fraud.
32. WAIVERS.
32.1 FIRST PARTY waives, relinquishes and releases any and all rights he may have ever had, presently has, or may later acquire in and to any and all of SECOND PARTY's business interests as listed on the attached Schedule B, together with any accretions in the value of such business interests, which may or may not be attributable to the direct or indirect efforts or contributions of either party, and any and all other assets acquired or established by SECOND PARTY with the proceeds, profits or assets of any of his business interests as now or later constituted, or from any other separate property listed on the attached Schedule B, subsequent to the parties' marriage.
32.2 SECOND PARTY waives, relinquishes and releases any and all rights she may have ever had, presently has, or may later acquire in and to any and all of FIRST PARTY's business interests as listed on the attached Schedule A, together with any accretions in the value of such business interests, which may or may not be attributable to the direct or indirect efforts or contributions of either party, and any and all other assets acquired or established by FIRST PARTY with the proceeds, profits or assets of any of her business interests as now or later constituted, or from any other separate property listed on the attached Schedule A, subsequent to the parties' marriage.
32.3 Except as otherwise provided, each of the parties forever waives, releases, and relinquishes to the other, and to the heirs, executors, administrators, devisees, legatees, and assigns of the other, all rights, interest, or claims of inheritance, and to a distributive share in the estate of the other (in event of intestacy), and quarantine, either as widow, widower, heir, survivor, distributee, or next of kin in and to all of the estate of the other, whether now owned or later acquired, and all other claims whatever which may in any manner arise or accrue by virtue of the intended marriage of the parties under any present or future law of Florida or of any other state or of the United States.
The provisions of this paragraph shall in no way be construed as preventing either of the parties from making specific devises, bequests, or legacies to the other.
32.4 Each party waives, relinquishes and releases all claims and rights he or she may have or ever had, presently has, or may in the future acquire, in and to any and all retirement benefits titled in the other party's individual name, whenever acquired, including, but not limited to, all pension and profit sharing plans, Keogh plans, 401(k) plans, Roth IRA and traditional IRA accounts, and all other similar retirement benefits or assets, and any appreciation in the value of such assets, whether due to market conditions or the direct or indirect contributions or efforts of either party.
33. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts collectively shall constitute the Agreement of the Parties.
IN WITNESS WHEREOF….