This blog post begins a series of articles examining prenuptial agreements in New York. While “prenups” have often been portrayed using the language of warfare as either “weapons” or “shields” to be used in the event of a divorce, I would like to cast the prenuptial agreement in a very different light. I would like to focus on the prenuptial agreement as a document that empowers each party in the marriage through consensus to establish a working framework for the marriage. By bringing to light and agreeing upon the most thorny of issues that are known to divide a couple (including the care and upbringing of any children; financial support by and for the parties; and ownership of property), the prenup allows each party to stipulate the elements that will make each comfortable as they enter the marriage.
While the statute that controls prenuptial agreements in New York is found in the context of a matrimonial action (separation or divorce), the prenup need not be a pre-emptive strike that envisions the dissolution of the marriage. Rather, the prenup can be the manifest of the agreements that the couple considers foundational to their long-term relationship. In fact, the ability to come to an agreement before the marriage on a set of difficult issues may be a strong indicator of future marital stability. The prenup can also be a starting point for the couple’s estate planning strategy.
Let us begin our discussion with a close examination of the statute that controls prenuptial agreements in New York, Domestic Relations Law (DRL) 236[B](3):
An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this chapter.
The first thing to notice is that a prenup is an agreement by the parties. The statute uses contract language to describe the necessary condition for a prenup: a meeting of the minds of the parties. There can be no duress (fear of violence or economic hardship, for instance) imposed by one party over another during the formation of the agreement. The parties must come to an agreement of their own free will. This is why I stronly recommend that each party be represented by independent counsel.
The second thing to notice is that the agreement can be made before or during the marriage. This means that the prenup can be modified during the marriage to reflect changing life circumstances. Before they marry, no couple can predict the joys and challenges that they will encounter in their life together. One of the best things a couple can do is to review their prenup on a yearly basis to make sure that the elements that they agreed to are still current, and to take into account new factors that have arisen in their life as a couple by adding, modifying, or deleting sections of the agreement. This is a healthy marital exercise that can bring a couple closer together. Any such modifications to the original agreement should be done with the assistance of an attorney for each party. The modifications must also demonstrate an absence of duress.
There are a number of formalities that must be observed in order for the prenuptial agreement to be valid. The agreement must be in writing. The legal names of each party must be in the document. Because it must be proven “in the manner required to entitle a deed to be recorded,” the document must be legible. The agreement must be signed and dated by each party. In New York, a prenuptial agreement must be notarized. Each party should have an original of the signed and notarized prenup, with either originals or certified copies deposited with representing counsel.
Over the next four posts on prenuptials, I will deconstruct the four elements of the statute and discuss how each one can become a pillar in the building of a strong marriage. I will also discuss how the forethought put into these four elements can be the first steps towards building an estate plan for a couple that will further solidify their life together, bring clarity to decision-making, and build trust in the relationship.
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