Matrimonial and Family Law Blog

Tuesday, June 28, 2016

Pre-Nuptial Agreements - What Couples Should Discuss Before Tying The Knot

A pre-nuptial agreement, also referred to as an antenuptial agreement, is typically an uncomfortable subject for couples planning to get married.  That is because it is a contract between both spouses under the Domestic Relations Law that anticipates a divorce.   However, this type of contract is worth the seemingly uncomfortable discussion.  It can save you and your spouse the substantial time, expense, and emotional turmoil of having to argue over terms and protect your property in the event of dissolution of marriage.  A pre-nuptial agreement can also protect your child or childrens’ upbringing, assets, or inheritance rights in the event of your spouse’s re-marriage or death.

If you and your spouse never completed a pre-nuptial agreement prior to marriage, you can still protect your rights and disseminate your responsibilities with a post-nuptial agreement.   Either contract is optional and can include provisions which predetermine support amounts, allocation of property, child custody, and similar topics to which the parties agree.  The parties may be able to negotiate away the responsibility of spousal support or other liabilities pursuant to the General Obligations Law.  However, any provision that absolves one spouse of the obligation of support can be overturned if the other spouse is insolvent at the time of divorce.  

If no agreement is formed, then property will be distributed pursuant to Equitable Distribution Law, and other undecided terms will be determined by your state’s applicable law.  Pre-nuptial contracts must be made in a signed writing to be valid and are effective upon lawful marriage.  A client would be well-advised to have an attorney draft this agreement to better ensure that it will be upheld by a court at law.  Moreover, an agreement will likely be thrown out if there is any evidence of fraud, undue influence, duress, or unfairness.  A pre-nuptial contract can also be overturned if either party does not disclose all of his or her assets, if the same attorney represented both the husband and wife at the time of the agreement, or if the agreement was oral.  Therefore, it is advised that each spouse seek a separate attorney to ensure evenhandedness and to better prevent the contract from failing.    

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