Whether to serve chicken or fish at the reception is often a point of significant debate when planning a wedding. An even more contentious issue facing couples contemplating marriage is whether to sign a prenuptial agreement in advance of their wedding. Advice on the subject comes from a variety of sources – grandparents looking to preserve a family business for their progeny; parents “looking out” for their son or daughter; friends “looking out” for other friends; adult children from prior marriages looking to preserve their love-struck mother or father’s estate from that “gold-digger” who is marrying their Mom or Dad “just for the money,” to name a few.
In point of fact, about 40 to 50 percent of married couples in the United States divorce (with the divorce rate typically even higher for subsequent marriages). Having a prenuptial agreement should, therefore, be viewed as good, sound estate planning, and the old lament that a prenuptial agreement takes all the romance out of marital bliss or actually encourages divorce should be retired to that same place reserved for stories about UFO’s and bigfoot.
In New York, premarital agreements are valid and enforceable if they are in writing, are signed by the parties and are “acknowledged or proven in the manner required to entitle a deed to be recorded.” The purpose of having a prenuptial agreement is to avoid the vagaries of the legal system and what are often head-scratching decisions issued in a divorce proceeding, since a prenuptial agreement will supersede what a court or statute may otherwise dictate. A good prenuptial agreement will generally provide for how monetary issues will be resolved in the event that a marriage ends through divorce, such as what happens to personal property or real estate that was acquired during the marriage, and whether one of the parties will receive some form of spousal maintenance or alimony. Many prenuptial agreements will also deal with estate matters and it is not uncommon, especially in connection with a second or third marriage, for each party to waive claims to the other’s estate in the event one of the parties passes away, even if still married at the time.
A properly prepared and executed prenuptial agreement should be thought of as a security blanket. A happily married couple will often forget they even have a prenuptial agreement, and the document will be left in drawer or box gathering dust, never to heard from or seen again. If, however, a marriage does not work out, having a prenuptial agreement can help avoid the significant time and expense involved in a contested divorce proceeding, which is often likened to a legal colonoscopy. For couples without children and child-related issues to resolve, the pre-resolution of these monetary issues will generally result in a streamlined and significantly less costly divorce process. For couples with minor children, while a court will always have the final say with regard to any child-related issues, paring down the number of issues in a divorce proceeding often means a less contentious process.
In short, the time has come to look at prenuptial agreements as making good business sense, and no longer as that scary third cousin living in the basement who never gets invited to the wedding.
Matthew C. Kesten has been practicing matrimonial and family law for over 32 years and joined SSRGA in May 2017 to head its matrimonial practice.