PRENUPTIAL AGREEMENTS…when “I do” may also mean “I won’t”

PRENUPTIAL AGREEMENTS…when “I do” may also mean “I won’t”

As a matrimonial attorney practicing on Long Island, I am often asked by a bride-to-be to review a prenuptial agreement from her soon-to-be husband, many times received only days away from the wedding.  Our client has been told by her fiancé or his attorney that her signing the agreement is now a prerequisite for the marriage to take place.  If this happens to you, do not sign anything before  experienced counsel of your own choosing reviews and explains the legal consequences of signing that agreement.

Because New York views marriage as an “economic partnership,” certain financial rights and obligations immediately attach and begin to grow once parties are married. When dissolution of a marriage is later sought, either through divorce, separation or annulment, the “rule book” for severing that partnership is set out in applicable laws, rules and previous court decisions.  Those rules, impacted by the unique facts and circumstances of the specific marital relationship, will determine, among other things, how accumulated “marital assets” get divided, whether spousal support is to be paid and for how long, how parties’ debts, inheritances and gifts to one another are treated and how family businesses are affected by the dissolution.   Add in issues of health and life insurance, children’s issues such as payment of college expenses and the list of what the legal “rule book” affects in peoples’ lives upon dissolution of marriage goes on and on.

However, a prenuptial agreement entered into before marriage serves to alter, affect and “opt out” of the default legal “rule book” by establishing contractual provisions between marrying partners that upon dissolution of the marriage, determine rights, obligations and outcomes which could vary drastically from what the law would otherwise direct.

The most common scenario in our practice is a bride-to-be being asked to sign a prenuptial agreement to protect the fiancé’s assets and limit his financial exposure to his wife upon a future divorce.  In other words, the fiancé does not want to risk accepting the obligations to his bride that the law causes to arise upon marriage and which at law, increase over that marriage’s duration.   Of course, women may initiate prenuptial agreements as well, and that number is increasing all the time.

There are other reasons for a prenuptial agreement, such as keeping assets separate and preserved for one’s children and out of the reach of step-children when a party is re-marrying later in life.  The reader should also know that “post- nuptial” agreements entered into after a marriage takes place,  may be used for the same purposes as a prenuptial agreement.

Recently, the Courts have decided cases where the enforceability of prenuptial and postnuptial agreements have been challenged.  It is clear from those cases and previous ones that to rely upon the future enforceability of all provisions of either a prenuptial agreement or a postnuptial agreement would be a mistake I believe or at the very least, that one spouses may eventually come to feel “buyer’s remorse” and attempt to challenge such an agreement.

As the law in this area continues to evolve, whether to sign such an agreement remains a very personal choice, but that choice should be made only after receiving independent advice and counsel from an experienced practitioner.

By Robert B. Pollack, Esq., principal attorney at The Pollack Law Firm, P.C. : Our firm is solely focused on Nassau and Suffolk County divorce, separation  and all phases of matrimonial law, family law and mediation—

The Pollack Law Firm, P.C., serving clients in Nassau and Suffolk County, is always available to assist and represent parties in divorce and all other matrimonial and family law matters. Please call today to schedule a free consultation: (516) 938-3330.

DISCLAIMER: This article is intended to provide only general information for entertainment purposes and should never be relied upon as legal advice.  One should seek the assistance of experienced matrimonial counsel to assist in explaining the law, options and making important decisions in any divorce, matrimonial or any family law matter.  By reading this article, no attorney / client relationship arises in any manner whatsoever.

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