Prenuptial Agreement - South Dakota

[DRAFT] PREMARITAL AGREEMENT

(South Dakota – Governed by S.D. Codified Laws §§ 25-2-16 to -26)

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block
Schedule A – Party A Disclosure Statement
Schedule B – Party B Disclosure Statement

I. DOCUMENT HEADER

1. Parties.
   1.1 “[Party A]” – [FULL LEGAL NAME], born [DATE OF BIRTH], currently residing at [ADDRESS].
   1.2 “[Party B]” – [FULL LEGAL NAME], born [DATE OF BIRTH], currently residing at [ADDRESS].

2. Contemplated Marriage. The Parties contemplate legal marriage on or about [MARRIAGE DATE] in [COUNTY], South Dakota, and wish to define their respective marital and separate property rights.

3. Effective Date. This Agreement becomes effective only upon solemnization of the Parties’ marriage (the “Effective Date”).

4. Governing Law. This Agreement shall be governed by and construed in accordance with the domestic relations laws of the State of South Dakota, including the South Dakota Uniform Premarital Agreement Act, S.D. Codified Laws §§ 25-2-16 to -26.

5. Consideration. Mutual promises herein and the marriage itself constitute good and valuable consideration.

II. DEFINITIONS

The following capitalized terms shall have the meanings set forth below. Defined terms may be used in singular or plural as the context requires.

“Agreement” – This Prenuptial Agreement, as amended from time to time.
“Commingle” / “Commingled” – The mixing of Separate Property with Marital Property such that tracing is impracticable.
“Disclosure Statements” – Collectively, Schedule A and Schedule B, listing each Party’s assets, liabilities, and income.
“Marital Property” – All property classified as such under Section 3.3.
“Separate Property” – All property classified as such under Section 3.1.

III. OPERATIVE PROVISIONS

3. Classification of Property.
   3.1 Separate Property. The following shall remain each Party’s Separate Property:
   (a) All property owned prior to the marriage as listed on such Party’s Disclosure Statement;
   (b) Property acquired after the marriage by gift, devise, or inheritance specifically to that Party;
   (c) Proceeds, increases, and substitutions of the foregoing, provided they are not Commingled.

3.2 Joint Acquisition of Separate Property. Title taken in both Parties’ names with explicit written designation as “Joint Separate Property – Not Marital” shall remain Separate Property unless otherwise agreed in writing.

3.3 Marital Property. All property not classified as Separate Property under Section 3.1 or 3.2 shall be Marital Property, subject to equitable division by a court of competent jurisdiction.

3.4 Management and Control. Each Party retains sole management of his or her Separate Property. Marital Property shall be managed jointly, requiring the written consent of both Parties for transactions exceeding $[THRESHOLD].

4. Spousal Support / Alimony.
   4.1 Spousal Support Restriction -- NOT WAIVABLE.

DRAFTER'S WARNING: South Dakota public policy prohibits the waiver of alimony in prenuptial agreements. South Dakota courts will not enforce a prenuptial provision that purports to waive spousal support. Do not include a spousal support waiver in a South Dakota prenuptial agreement.

The Parties acknowledge that spousal support may not be waived by premarital agreement under South Dakota law. Any provision purporting to waive or limit spousal support is unenforceable and void as against public policy.
4.2 Court Authority. The issue of spousal support shall be subject to South Dakota law and judicial determination at the time of any proceeding.

5. Debts. Each Party shall be solely responsible for debts incurred in his or her own name before or during the marriage unless expressly assumed in writing by the other Party.

6. Estate Rights. Both Parties waive any elective share, homestead, or comparable statutory interest in the other’s estate, except as otherwise provided in a duly executed testamentary instrument after the Effective Date.

7. Life Insurance. Each Party shall maintain policies as follows:
   (a) Minimum Death Benefit: $[AMOUNT];
   (b) Beneficiary Designation: [PRIMARY BENEFICIARY] with [ALTERNATE BENEFICIARY].

8. Tax Matters. The Parties intend to file [joint/separate] federal and state income tax returns unless mutually agreed otherwise. Allocation of refunds or liabilities shall follow the property characterizations set forth herein.

IV. REPRESENTATIONS & WARRANTIES

9. Mutual Representations. Each Party represents and warrants that:
   9.1 Voluntariness. They are entering this Agreement voluntarily, free of duress, fraud, or undue influence.
   9.2 Capacity. They have legal capacity to contract and intend to be bound.
   9.3 Full and Fair Disclosure. They have delivered a complete and accurate Disclosure Statement, true and correct to the best of their knowledge as of the date executed.
   9.4 Independent Counsel. They have had the opportunity to seek independent legal counsel and either have done so or have knowingly waived such right.

10. Survival. The representations and warranties in this Article shall survive the Effective Date indefinitely.

V. COVENANTS & RESTRICTIONS

11. Affirmative Covenants.
    11.1 Updates to Disclosure. Each Party shall promptly update the other with material changes (greater than $[THRESHOLD]) in assets or liabilities prior to the marriage.
    11.2 Cooperation. The Parties shall execute all additional documents reasonably necessary to effectuate this Agreement.

12. Negative Covenants.
    12.1 No Commingling. Neither Party shall Commingle Separate Property without written consent of the other.
    12.2 No Transfer to Defeat Rights. Neither Party shall transfer or encumber property with intent to defeat the other’s rights under this Agreement.

VI. DEFAULT & REMEDIES

13. Events of Default.
    (a) Material breach of any covenant or warranty;
    (b) Willful failure to disclose assets as required;
    (c) Fraudulent conveyance to defeat property rights.

14. Notice and Cure. A non-breaching Party shall give written notice specifying the default. The breaching Party shall have 30 days to cure, if curable.

15. Remedies.
    15.1 Specific Performance. The Parties acknowledge monetary damages may be inadequate; therefore, each Party shall be entitled to specific performance or injunctive relief.
    15.2 Fees and Costs. The prevailing Party in any action to enforce this Agreement shall be entitled to reasonable attorneys’ fees, costs, and expenses.

VII. RISK ALLOCATION

16. Mutual Indemnification. Each Party (“Indemnifying Party”) shall indemnify, defend, and hold the other (“Indemnified Party”) harmless from any loss arising out of (a) breach of any representation, warranty, or covenant herein, or (b) debts or obligations specifically allocated to the Indemnifying Party.

17. Liability Cap. Except for intentional misconduct or fraud, the Indemnifying Party’s aggregate liability shall not exceed the greater of (i) $[CAP AMOUNT] or (ii) the value of property received by the Indemnifying Party under this Agreement.

18. Force Majeure. Neither Party shall be liable for non-performance caused by events beyond reasonable control, excluding financial incapacity.

VIII. DISPUTE RESOLUTION

19. Governing Law & Forum. All disputes shall be decided under South Dakota law exclusively by the [COUNTY] Family Court, subject to Section 20.

20. Limited Arbitration. Property-related disputes (excluding child custody, child support, or other non-arbitrable family matters) shall, at either Party’s election, be submitted to binding arbitration administered by [ARBITRATION ORGANIZATION] in [CITY], South Dakota, pursuant to its then-current commercial rules. Judgment on the award may be entered in any court of competent jurisdiction.

21. Jury Trial Waiver. Not applicable—South Dakota family courts adjudicate matters without juries.

22. Interim Relief. Notwithstanding Section 20, either Party may seek temporary, injunctive, or specific performance relief in the designated Family Court to preserve the status quo.

IX. GENERAL PROVISIONS

23. Amendments. Must be in writing, signed by both Parties, and notarized (S.D. Codified Laws § 25-2-22).

24. Waiver. No waiver shall be effective unless in a writing signed by the waiving Party. Failure to enforce any provision is not a waiver of future enforcement.

25. Assignment. Personal to the Parties; neither may assign rights or delegate obligations without prior written consent of the other.

26. Severability. If any provision is unenforceable, the remainder shall be severed and enforced to the maximum extent permitted by law.

27. Entire Agreement. This document, including schedules, constitutes the entire agreement and supersedes all prior discussions.

28. Counterparts; Electronic Signatures. May be executed in counterparts and by electronic signature, each of which shall be deemed an original.

X. EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth below.

NOTARY ACKNOWLEDGMENT (South Dakota)
State of South Dakota )
County of [________________________________] ) ss.

On this ___ day of __________, 20__, before me, the undersigned Notary Public, personally appeared [PARTY A] and [PARTY B], known to me or satisfactorily proven to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained.

________________________________________
Notary Public
My Commission Expires: __________

SCHEDULE A

PARTY A DISCLOSURE STATEMENT

[Attach detailed list of assets, liabilities, and income.]

SCHEDULE B

PARTY B DISCLOSURE STATEMENT

[Attach detailed list of assets, liabilities, and income.]