Prenuptial Agreements

Prenuptial agreement as  binding contract 

A prenuptial agreement relates to the rights and obligations each of the parties will have after they become married to one another, and what will happen in the event of a subsequent divorce. Typically the agreement will cover such matters as division of property and alimony (called “maintenance”) in the event of divorce.  If properly executed,  it is a legally binding contract. As such, it is presumed to be valid, and is enforceable, absent some defense.

Requirement of acknowledgment

A prenuptial agreement, in order to be valid, must be signed or “acknowledged” in a very specific manner, which is referred to in the law as “in the same manner as would be required to record a deed”. Problems with acknowledgments only come up if the drafting lawyer is incompetent, or at least ignorant about matrimonial law, i.e.  agreement drawn up by lawyer who does only social security disability law.

Defenses to enforcement

Since the  agreement is a contract, it is subject to all of the potential legal defenses to a contract. However the main defenses that the drafter needs to be aware of are fraud, duress, and something called “unconscionability“.

Fraud is usually claimed if there was a failure to fully and accurately disclose important facts before the agreement is signed. Typically we are talking about a failure to disclose financial assets, income, or sources of income. However other important items that should be disclosed could include major health problems of a party, prior marriages, the presence of out of wedlock children, and the like. A defense of fraud can be raised whenever a party can claim that he or she would never have signed if these important facts had been disclosed. Typically a full listing of each party’s assets as well as the most recent income tax returns are annexed/incorporated in the prenupt.

Duress typically comes into play when the document is signed very close to the date of the marriage. Therefore, it should be signed and executed at a minimum of 30 days before the date of the marriage.

Unconscionability means that the agreement was so one sided (typically in favor of the party who drafted the agreement) at the time that it was entered into that no honest person would have drafted it that way and no sane person would have agreed to it. Issues of unconscionability are the trickiest issues that come up. A court which is asked to decide many years later if an agreement was unconscionable at the time it was made will have to look into all of the circumstances that existed way back when. How old were these parties at that time? How much income and/or assets did each party have at that time? Was it a first marriage or a second, third, etc marriage for either or both of them? What representations were made by each? In sum was the agreement basically fair, totally unfair, or somewhere in the middle, at the time that it was made?

Both parties need lawyers

Both parties should always be represented by lawyers.  When both parties have lawyers it is harder to claim any of the defenses listed above.   If the agreement is drawn up by your fiancee’s lawyer, that lawyer should not refer you to his or her friend or colleague. You should find your own lawyer, who is loyal only to you.

Free Initial Telephone Consultation

By now you have probably figured out that this is an area of the law where you can’t rely on a form downloaded from the internet or a “fill in the blanks” form supplied by an attorney with little knowledge of matrimonial and family law.  Every agreement should be custom made and unique, because every couple’s situation is unique.  If you are thinking about getting a prenuptial agreement for yourself, or if your fiancee wants you to sign one, feel free to call me anytime at 347-461-0760 for a free initial telephone consultation.

Paul Matthews