Q : What is a prenuptial agreement?   A : A prenuptial agreement, or antenuptial agreement in New York law, is a contract entered into by a man and woman before they marry. The agreement usually describes what each party's rights will be if they divorce or when one of them dies. Prenuptial agreements most commonly deal with issues of property and support--who is entitled to what property and how much support, if any, will be paid in the event of divorce.

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Q : Why do people enter into prenuptial agreements?   A : Sometimes persons intending to marry use prenuptial agreements as a way of clarifying their expectations and rights for the future. Another reason for making such agreements is to try to avoid uncertainties about how a divorce court might divide property and decide spousal support if the marriage fails. A man or woman who wants a future spouse to enter into a prenuptial agreement often has something he or she wants to protect, usually money. One or both partners may want to avoid the risk of a major loss of assets, income, or a family business in the event of a divorce. For people marrying for a second or third time, there might be a desire to make sure that a majority of assets or personal belongings are passed on to the children or grandchildren of prior marriages rather than a current spouse.

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Q : What does the less wealthy spouse give up by signing a prenuptial agreement?   A : The less wealthy spouse is agreeing to have his or her property rights determined by the agreement rather than by the usual rules of law that a court would apply on divorce or the death of the wealthier spouse. As will be discussed later, courts have certain rules for dividing property when a couple divorces. In New York, a divorce judge usually divides property as she considers equitable, and the division could be fifty-fifty or something else. If one spouse dies, courts normally follow the instructions of that person's will, but the surviving spouse usually is entitled to $50,000 to one-half of the estate regardless of what the deceased spouse's will says. If the husband and wife have signed a valid prenuptial agreement, that agreement will supersede the usual laws for dividing property and income upon divorce or death. In many cases, the less wealthy spouse will receive less under the prenuptial agreement than he/she would receive under the usual laws of divorce or wills.

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Q : Why would the less wealthy spouse sign a prenuptial agreement if he or she would receive less under the agreement than under other laws?     A : The answer to that question depends on the individual. Some people prefer to control their fiscal relationship rather than to leave it to state regulation. They may want to avoid uncertainty about what a court might decide if the marriage ends in divorce. For some, the answer may be "love conquers all"--the less wealthy person may just want to marry the other party and not care much about the financial details. For others, the agreement may provide ample security, even if it is not as generous as a judge might be. Still others may not like the agreement, but they are willing to take their chances and hope the relationship and the financial arrangements work out for the best.

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Q : What is necessary to make a valid prenuptial agreement?   A : First, the agreements must be in writing, signed, and properly executed by the parties. This requires both that an oral acknowledgment be made before an authorized officer and that a written certificate of acknowledgment be attached. Second, the agreements also must be fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment. An agreement is likely to be invalid on the basis of fraud if one person deliberately misstates his or her financial condition. For example, if a man hides assets from his future wife so that she will agree to a low level of support in case of divorce, a court probably would declare the agreement invalid. Similarly, if one person exerts excessive emotional pressure on the other to sign the agreement, a court also might declare the agreement to be invalid because of duress.

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Q : When should the agreement be signed?    A : New York does not set a specific time at which prenuptial agreements must be signed because the law recognizes any marital agreement made either before or during the marriage. Generally, it is better to negotiate and sign the agreement well before the wedding, to show that each person has considered it thoroughly and signed it voluntarily. If the wealthier person shows the agreement to the prospective spouse only one day before the wedding, a court may later find that agreement invalid because of duress.

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Q : Must the parties to a prenuptial agreement be represented by lawyers?   A : No, but lawyers can help make sure that the agreement is drafted properly and that both parties are making informed decisions. The lawyer for the wealthier party usually prepares the initial draft of the agreement. The less wealthy party does not need to have a lawyer in order to have a valid agreement, but the agreement is more likely to be enforceable if that person's interests are represented and some back-and-forth negotiations take place.

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Q : May prenuptial agreements decide future issues of custody and child support?   A : Yes. A court may consider a prenuptial agreement the parties have reached regarding child custody or support, but the court is not bound by it. Broadly speaking, courts do not want parties to bargain away rights of children, particularly before children are even born.

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Q : Do prenuptial agreements need to provide for a certain amount of support?    A : No, the law does not set a specific amount. In some cases, a court may decide that an agreement is enforceable even if it leaves one spouse with no property and no support from the other party because New York has a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements. The courts will enforce an agreement to provide no spousal support, so long as waiver of support does not leave the less wealthy party so poor that she or he is eligible for welfare. However, New York courts will also apply broader notions of fairness and require certain spousal support despite of a waiver of support, and will not enforce a prenuptial agreement that is unconscionable. Many lawyers think it is a good idea for prenuptial agreements to contain an "escalator clause" or a "phase-in provision" that will increase the amount of assets or support given to the less wealthy spouse based on the length of the marriage or an increase in the wealthier party's assets or income after the agreement is made.

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