As you probably know, a prenuptial agreement is a contract that will generally protect each party’s pre-marital assets and potentially any assets purchased during the marriage. If you have already made the decision to enter into a prenuptial agreement, then it is important that the prenuptial agreement is: (1) enforceable (valid) and (2) comprehensive.
A prenuptial agreement that is invalid obviously does you no good. When a prenuptial agreement is challenged, the Court will consider these factors in determining if the agreement is valid:
- Execution (Signature) Date: It is good practice to have the prenuptial agreement fully signed at least one month prior to the wedding date. The closer the signature date is to the wedding date, the better the odds that a Court will consider the prenuptial agreement invalid. This is because, for example, if a prenuptial agreement is signed the day before the wedding, the Judge will believe that it was signed due to the “pressure” of getting married and therefore is invalid.
- Each party has an Attorney: Although, it is not required that each party who is signing the prenuptial agreement have an attorney, it is highly recommended that this is the case. A Judge will not automatically invalidate a prenuptial agreement, just because one party (or even in the very rare case both parties) did not have an attorney. However, it can be considered as a factor in judging a prenuptial agreement as invalid due to one party not having legal advice.
- The prenuptial agreement is “fair”: Of course, “fairness” is in the eye of the beholder. However, a completely one-sided prenuptial agreement will often be criticized and invalidated.
- Not properly notarized: In New York, there have been a series of cases where the highest Court has invalidated a prenuptial agreement because they were not properly notarized. In New York, a prenuptial agreement must include a properly worded “acknowledgment” – the acknowledgment is defined in the statute and usually looks like this:
State of New YorkCounty of ____________ ss :
On the ____________ day of ____________ in the year ____________ before me, the undersigned, personally appeared ________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.
Assuming the prenuptial agreement is valid, then you also want to ensure that it is comprehensive. Your prenuptial agreement should mention all of the following topics:
- Separate Property and Assets: Virtually every prenuptial agreement will discuss each party’s separate property and separate assets.
- Increase in Value of Separate Property: A prenuptial agreement should also discuss what happens if a party’s separate property/asset decreases in value.
- Contributions of funds or maintenance of separate property: For many assets (i.e. marital home), each party may contribute fund or maintenance to the separate property. A comprehensive prenuptial agreement will make sure that this contingency is discussed.
- Listing of current significant assets: In addition to discussing a party’s separate property, there should be an Exhibit or Appendix of each party’s significant assets and its approximate value. For example: Joe’s Real Property at 123 Main Street: $500,000
- Retirement assets: All too often, parties forget to put their retirement assets in a prenuptial agreement. It is important that a prenuptial agreement includes the terms and conditions of how each party’s retirement assets will be considered in case of a diorce.
- Spousal maintenance (alimony): Regardless of whether or not a part wants to waive maintenance or just rely on New York law, a prenuptial agreement should mention spousal maintenance and how it should be handled in case of divorce.
- Attorney’s Fees: Similar to spousal maintenance, a good prenuptial agreement will also discuss attorney’s fees, even if neither party is seeking the same.
If you are contemplating entering into a prenuptial agreement, then contact David Badanes, Esq. and the Badanes Law Office, P.C. The Badanes Law Office has drafted numerous prenuptial agreements.
The Badanes Law Office main location is in Northport, New York with a satellite office in Nassau County. For clients in New York City, oftentimes the prenuptial agreement can be done remotely. If you need a prenuptial agreement, then call the Badanes Law Office today at 631-239-1702 or email us at email@example.com.