Pre-Nuptial Agreements

Pre-Nuptial Agreements are documents which are prepared and executed prior to marriage. They do not have any force or effect until the parties are actually married. In the preparation of a Pre-Nuptial agreement, the parties should each have separate counsel and, ideally, the parties should allow sufficient time prior to the marriage to ensure that following its execution or at the time of its enforcement, no allegation can be made that a party was under any type of pressure or duress to execute the document on the eve of the marriage. Likewise, there should be full financial disclosure typically in the form of a written statement of each party's assets and liabilities, to ensure that each party has had sufficient time to consider their respective financial circumstances in light of either party relinquishing rights that they would have otherwise had absent the Pre-Nuptial agreement. The Statements are typically annexed to the Agreement.

Pre-Nuptial Agreements are documents which are prepared and executed prior to marriage. They do not have any force or effect until the parties are actually married. In the preparation of a Pre-Nuptial agreement, the parties should each have separate counsel and, ideally, the parties should allow sufficient time prior to the marriage to ensure that following its execution or at the time of its enforcement, no allegation can be made that a party was under any type of pressure or duress to execute the document on the eve of the marriage. Likewise, there should be full financial disclosure typically in the form of a written statement of each party's assets and liabilities, to ensure that each party has had sufficient time to consider their respective financial circumstances in light of either party relinquishing rights that they would have otherwise had absent the Pre-Nuptial agreement. The Statements are typically annexed to the Agreement.

In New York, the Courts have historically reviewed pre-nuptial agreements as binding contracts in that each party has free will not to execute the document or not to go forward with the marriage. They have found that an agreement which is one-sided cannot be the sole basis for setting such an agreement aside. The Court will, however, scrutinize whether the agreement was fair at the time of its execution and not unconscionable at the time of its enforcement. This will also include a review of the document to determine whether it is an authentic document, whether there was full financial disclosure, all protocols were followed, whether both parties had the benefit of legal advice, that the document clearly represents the agreement of the parties , and that the parties properly waived their stated rights and the Agreement controls. The Court, in its discretion can consider whether there has been a change of circumstances which would preclude enforcement of part or all of the agreement.

Given the delicate nature of Pre-Nuptial agreements, when considering your choice of legal representation it would be prudent during your consultation with a prospective attorney, to have a frank discussion as to how they would handle such negotiations of these delicate and challenging issues. Discussing your understanding of how the financial issues will be handled during the marriage is essential as are your respective expectations. Often couples have not fully discussed these issues before they seek the assistance of counsel to draft the document. How those discussions and negotiations are handled can make all the difference with the outcome.