The Art of the Prenuptial Agreement: Part 2

The Art of the Prenuptial Agreement: Part 2 by Joshua Katz

{2:30 minutes to read} In our previous article, we discussed prenuptial agreements. With this basic understanding of a prenuptial agreement and its function, this article will expand that foundation, as well as address some shifting trends in the way the courts are responding to prenuptial agreements.

Is a Prenup Ironclad?

By nature, prenuptial agreements are one-sided, unfair documents. In essence, one person is waiving his or her right to a claim in the event of a divorce.

Spouses do have the right to challenge a prenuptial agreement. For example, a spouse who is coming out of a lengthy marriage with no maintenance and no property (because of a prenuptial agreement that was signed decades prior) can argue that the prenup is unfair and contest it. Technically, this argument is irrelevant, as the legal standard is whether it was so unfair that no reasonable person would have agreed to it at the time it was signed.  

However, in New York State, there is a trend where courts are giving credence to this argument if the document is overly one-sided. In light of this, it is critically important that prenuptial agreements are drafted extremely carefully.

If there is any issue as to a party’s ability to understand the document or the English language, or that the agreement might be TOO one-sided, it might be smart to video record the execution of the document and allocute the parties on video about their understanding and voluntary consent.

Surprising Uses for Prenuptial Agreements

Although we generally think of utilizing prenups to protect monetary investments, their use can extend beyond that as well.

As a binding contract, a prenuptial agreement can be used to preemptively determine:

  • Religious Affiliation for Children: The prenup dictates that the children will be raised in a particular faith regardless of any custody issues that arise from divorce.
  • Location: The prenup ensures that a spouse would remain in a particular area and preclude relocation. 
  • Spousal Support: The prenup indicates an intention to support the non-working spouse (as opposed to a waiver to maintain the spouse). 

In theory, a couple could use a prenup to create any type of promissory arrangement, and some have. One celebrity couple had a prenup that stipulated a minimum frequency of physical intimacy they would engage in!

Prenuptial agreements, despite their bad rap, have myriad purposes and can be utilized in a variety of ways that simplify decisions in the event of divorce.

Please contact us with your questions regarding a prenuptial agreement!

Plaine & Katz, LLP
80-02 Kew Gardens Rd.
Suite # 1050
Kew Gardens, NY 11415

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