If you’re getting married, you should have a prenuptial agreement.  Without one, should you divorce, a New York court will divide the “marital assets” as the court deems equitable.  A prenuptial agreement will help ensure that YOU keep what’s YOURS and that your spouse keeps what is theirs.  Unfortunately, divorce is far too often a windfall for the spouse with less assets or income.  

            In New York, a prenuptial agreement is simply an agreement between two people that spells out how assets are to be divided upon divorce or death.  Much like a will it allows the parties to decide what happens to their assets rather than a Court.  Without a prenuptial agreement, a court will usually determine the division of your assets.  Discussing a prenuptial agreement with your fiancé can certainly be uncomfortable but it is a discussion that must be had.

            One of the most important aspects of a prenuptial agreement is the list of each of the parties’ assets and liabilities.  You must make total disclosure of all of your assets and liabilities.  One way your spouse might try to void the prenuptial agreement is by claiming you didn't reveal all of your assets when you negotiated and signed the agreement.  They will claim they never would have agreed to forego maintenance had they known you owned investment property or had substantial stocks, bond, real estate etc.

            Equally important is the need for separate representation.  Each party needs their own attorney who will represent that party's interests.  Spouses have tried to void prenuptial agreements by claiming they did have their own representation during the negotiation and signing of the agreement.  In fact, you shouldn't even show up together at the same attorney's office.  Wife-to-be has her attorney and husband-to-be has his own attorney.  You should not use the attorney you use for your prenuptial agreement as your "family" attorney after marriage.  For example, do not use the attorney you used for your prenuptial agreement to represent you when you purchase your first home (or any subsequent homes), draft your wills or other legal documents, dealings with your local city, village or town, etc.  Why?  Once the attorney you used for the prenuptial agreement represents both you and your spouse on another matter, that attorney will be disqualified from representing you should you and your spouse seek a divorce.  The reality is, in the event of marital strife, you most likely will turn first to the attorney who drafted and negotiated your prenuptial agreement.

            A prenuptial agreement is of course, a sensitive topic to raise while making wedding plans with your spouse.  However, it should be discussed; especially if you are the spouse with more assets and earning capacity.  In New York, absent a prenuptial agreement, courts look to, among other things, the standard of living previously enjoyed by the parties when determining how to divide marital assets and whether maintenance should be paid by one spouse to the other.  What if your spouse enjoys a high standard of living only because of what you earn?  In the event of divorce, should he or she continue to enjoy a high standard of living at your expense?  Is marrying a wealthy person akin to hitting Lotto? 

            It is the public policy of the State of New York that families decide their own affairs and this policy encompasses agreements made by parties prior to their marriage or during their marriage.  Strong v. Dubin (1st Dept.).  A prenuptial agreement allows the parties to agree in advance as to how they will resolve issues in the event the marriage terminates.  Such agreements help expedite and streamline the divorce process and they will not be cast aside lightly.  However, to be upheld, the agreement to override the court’s prerogative to divide assets equitably (known as Equitable Distribution in New York) must be clearly set forth in a signed writing evincing the parties’ clear intent to deviate from the equitable distribution laws.  Tietjen v. Tietjen  (2nd  Dept. 2008.)

In New York, prenuptial agreements and other agreements pertaining to marriage are governed by contract law.  A properly executed prenuptial agreement is afforded the same presumption of legality that attached to any other contract.  Strong v. Dubin (1st Dept.).  As with any contract, once a dispute arises, the “contract” will be challenged.