Call today for a Free and Confidential Consultation (845) 639 1836

Prenuptial Agreements

Prenuptial agreements are also referred to as premarital agreements or antenuptial agreements and are often only thought or heard about when discussed in the media related to famous and wealthy individuals; however they are becoming more frequent in everyday marriages. They can either be entered into on the first marriage or the second (or subsequent) marriages. In all events prenuptial agreements are negotiated prior to the marriage.

For many first time marriages the request can arise when there is a more-moneyed spouse (or one with family wealth) and a less-moneyed spouse. In second (or subsequent)  marriages, the request typically arises as a result of financial imbalances, concerns and or obligations to the children of prior marriages, or even as a result of requirements in previous divorce agreements that require a pre-nuptial agreement, for example, a previous commitment to guarantee estate rights.

Most Brides and Grooms fear negotiating prenuptial agreements, concerned that the discussions could cause irreparable harm and create stress upon the marriage at the outset resulting with bad feelings between the Bride and Groom and or their families, right before the wedding. The chances of these concerns becoming a reality are increased if negotiations take place in an adversarial setting with two separate attorneys, especially if boilerplate provisions are presented by the initiating party’s attorney in an unthinkingly and harsh way. Often attorneys are insensitive to the detrimental emotional, personal, and marital effect produced by a prenuptial agreement (and its negotiation) and are harmful to the process by not recognizing or respecting the wishes and goals of both parties as their job is to zealously represent only one party.

An increasing number of Brides and Grooms are utilizing mediation as the preferred method of discussing their expectations for the marriage, as the process allows them to discuss what is important to each of them, allows them to make their own decisions about what provisions work best for them and at times explore topics they may not have considered. Mediation is an optimal setting for the future spouses to come together to discuss their beliefs, goals, interests, and concerns. They can themselves determine what should be the terms and provisions in their prenuptial agreement and have written creative clauses that address each parties concerns and or “what if” scenarios. Clearing the air of concerns and fears and memorializing each party’s intentions minimizes feelings of resentment and doubts as to each party’s’ commitment to the other. All of which can make future divorce much more likely.

Both the Bride and Groom are encouraged to have the final draft reviewed by separate attorneys to minimize any potential accusations that a party did not understand or that there was a power imbalance and or coercion.

Topics may include:

  • Financial expectations for the marriage
  • Identifying if property will remain the separate property or Marital Property
  • How to pay for expenses
  • How to treat income earned during the marriage
  • Spousal maintenance/alimony
  • Estate rights

How do I ask my future spouse for a prenuptial agreement? Be mindful that it’s all in the approach. This is a very sensitive topic and you don’t want to make your future spouse defensive. Be honest. Express your concerns sincerely. For example: if you come from a family where your parents had a very contentious divorce and you don’t want to replicate history … say it. Ask your future spouse if he or she would be willing to have a meeting with a neutral mediator where that person would help you both to express each of your personal concerns and expectations and agree upon the framework of the marital relationship.

When do I approach my future spouse with my request to have a prenuptial agreement?  It’s very important to raise this topic sooner rather than later. The rule of thumb in most states is to avoid having this discussion or signing a prenuptial agreement just prior to the marriage (within 30 days of the date of marriage) as it could leave the agreement open to questions of undue influence or coercion.  Give yourselves a reasonable amount of time to contemplate the discussions thoroughly.