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Antenuptial and Post-Nuptial Agreements in New York

This article is a brief overview of antenuptial and postnuptial agreements. It is not intended to be legal advice and should not be relied upon as such. As with any legal dispute or problem, an attorney should be consulted. All references to antenuptial agreements are also applicable to post-nuptial agreements unless specifically excluded or differentiated.

An antenuptial agreement (also called pre-nuptial agreement) is a contract between two people contemplating marriage. It can provide for support, both spousal and child support, property distribution, inheritance rights, and custody in the event of marital dissolution. A post-nuptial agreement is a contract between married persons during the marriage. Both contracts are voluntary contracts.

Domestic Relations Law section 236 B 3 specifically provides:

An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include (1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for the custody, care, education and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this chapter.

Nothing in this subdivision shall be deemed the validity of any agreement made prior to the effective date of this subdivision.

Courts have long favored agreements that resolve disputes that may arise during a marriage. Parties contemplating marriage are free to make any provisions they want so long as they do not violate any law or violate public policy. Oftentimes, the parties agree as to which state will govern in the event of a dispute. If the parties reside in New York, a provision can be inserted that New York law will govern the interpretation and enforcement of the agreement.

In the case of Matisoff v. Dobi, 90 NY 2d 127 (1997), the Court of Appeals noted the "strong public policy in favor of individuals resolving their own family disputes."

By an antenuptial agreement, the parties can decide what property will be considered separate property and what property will be considered marital property and the division of marital property. Property can include that which exists at the time of the marriage as well as property acquired during the marriage. This is so even though the classification contravenes the provisions of the Equitable Distribution Law. This is one of the main reasons why parties enter into antenuptial agreements.

The parties can agree on the amount and duration of maintenance (alimony), subject to the provisions of General Obligations Law section 5-311. General Obligations Law section 5-311 allows the parties to be relieved of their obligation to support the other, provided the parties are self-supporting and not in danger of becoming a public charge. In other words, a provision in an agreement waiving spousal support (maintenance) will be upheld unless either party is in danger of going on welfare.

Parties to an antenuptial agreement often agree to waive any interest in the other party's retirement benefits.

According to the Appellate Division in the First Department, parties to an antenuptial agreement cannot effectively waive an interest in the other person's pension benefits, if the pension benefits are governed by the Employee Retirement Income Security Act (ERISA) , 29 USC, Section 1055 (c) (2) (A) {i}, since only a spouse can waive the interest, Richards v. Richards, 232 AD2d 303 (1st Dept. 1996) . See Hurwitz v. Sher, 982 F. Supp. 778 (2d Cir. 1992) The Appellate Division in the Second Department however, holds that a pension waiver in a prenuptial agreement is a valid waiver under ERISA, since the spousal consent provision applies to the current spouse of the plan participant, Moor-Jankowski v. Moor-Jankowski, 222 AD2d 422 (2nd p t . 1995). Until the matter is resolved, the safer course, in light of the conflicting decisions, would be to have the waiver reexecuted after the marriage.

It is strongly suggested that each party to an antenuptial agreement have her/his own attorney selected by that party. An antenuptial agreement will be subject to heightened scrutiny when there is one attorney representing both parties.

In Matter of Grieff, 92 NY2d 341 (1998) the Court of Appeals held that a party to a pre-nuptial agreement who contests the agreement has the threshold burden of proving by a fair preponderance of the evidence that the other party had an undue influence or unfair advantage.

Once this is shown, the burden of proof shifts to the proponent of the agreement to show that the agreement was free from fraud or undue influence. In Grieff, the husband's lawyer selected the lawyer for the wife.

It is also suggested that there be full disclosure of each party's assets although cases have held that a representation in the agreement that each party was aware of all of the assets of the other party was sufficient. The safer route would be to attach separate schedules of each party's assets to the agreement.

One of the most important requirements for antenuptial and post-nuptial agreements is the requirement that the signatures of the parties be acknowledged, see Matisoff v. Dobi, 90 NY 2d 127 (1997). Failure to have the signatures acknowledged will result in a court denying enforcement of the agreement. An acknowledgment is a form of notarization.

As with all contracts, an antenuptial or postnuptial agreement cannot be set aside by a court because a party has seconds thoughts or may have been improvident. An agreement can only be set aside if a court finds fraud, duress, undue influence, or that the agreement is unconscionable. It is wise to think carefully before entering into an antenuptial or post-nuptial agreement and to obtain legal advice prior to signing the agreement.

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