Need a Prenupital Agreement?

A prenuptial agreement is essentially a legally binding agreement made before a couple gets married or enters into a civil partnership. The agreement deals with what should happen to assets of the couple in the event of divorce, though various additions can also be made including provisions and recommendations for alimony and the division of property. Prenuptial contracts often go by alternate names, such as ante nuptial agreements or premarital agreements; however, the usage is the same.

The popularity of prenuptial agreements has increased since the turn of the 21st century, though they were not unheard of before then. This is attributed by lawyers to an increase in media coverage of high profile divorces, which often sees as exceedingly wealthy individual divorcing someone of lesser means – and being forced to sacrifice up to half of their fortune.

A prenuptial agreement is recognized by all 50 states of the America, though they are not always followed verbatim. Often, discretion is required in cases where wealth and income has increased – or significantly decreased – between the time of the agreement and the time of the divorce. A prenuptial agreement can be appealed against if the party that stands to lose out is unhappy, though just cause must be given for doing so. American courts tend to uphold and recognize prenuptial agreements as they are, but it is worth remembering that these agreements are not a final line. It is possible for either party to challenge a prenuptial. Recently, Stephen Spielberg's wife did just that during their high profile (and acrimonious) divorce. She was successful in this attempt, and walked away with a settlement of over $50 million.

Family law attorney, Eric M. Gansberg, Esq., is located on Staten Island, New York, and represents men and women with divorce, child support and family law throughout the New York City area, including Staten Island, Annadale, Arden Heights, Bay Terrace, Dongan Hills, Eltingville, Emerson Hill, Fort Wadsworth, Graniteville, Grant City, Grasmere, Great Kills, Greenridge, Grymes Hill, Heartland Village, Huguenot, Lighthouse Hill, Midland Beach, New Dorp, New Springville, Oakwood, Old Town NY, Pleasant Plains, Prince's Bay, Randall Manor, Richmond Valley Richmondtown, Rosebank, Rossville, Shore Acres, Silver Lake, South Beach, St. George, Tottenville Beach, Ward Hill, Westerleigh, Willowbrook, Woodrow, other areas of Staten Island, New York City, Brooklyn, Manhattan, Queens, Bronx, Long Island, Suffolk County, Nassau County, Westchester County, and Rockland County.

Prenups!

A prenuptial agreement, sometimes called a premarital agreement, is a contract between people who intend to marry which governs what will happen to their assets in the event of divorce. Historically, courts viewed prenuptial agreements with suspicion, believing that they discouraged people from getting married. Today, most jurisdictions permit prenuptial agreements, taking the opposite perspective that they can actually help facilitate marriage.

"Prenuptial" or "Prenuptual"?
The word "prenuptial" is one of the most frequently misspelled words in legal parlance. The term is derived from the word "nuptial", which means "of or relating to marriage or the wedding ceremony". While a hyphenated reference to a "pre-nuptial agreement", or the short-hand reference to a "prenup", can be acceptable, the misspelling "prenuptual" is not. If you see a website advertising "prenuptual agreements", the author of the page probably doesn't know anything about the subject.

Who Needs A Prenuptial Agreement?
Prenuptial agreements are perhaps most common in situations where one person has considerable assets or earning capacity, or owns a business, and is marrying a person who has significantly fewer assets. An agreement as to a future property settlement or spousal support (alimony) payments can provide the wealthier spouse with financial protection, and at the same time with some assurance that the marriage is about love and not money.



Premarital agreements can also be beneficial for second marriages, particularly when the couple is older and both partners are financially established. People who are financially independent, have accrued significant retirement savings, and have children from prior marriages may wish to provide that their assets and retirement accounts remain separate, and that certain property, such as family heirlooms, remain outside of the marital estate.

A prenuptial agreement can also cover assets which have not yet come into the marital estate, for example by clarifying how inheritances will be treated in the event of divorce.

If you are pursuing a professional degree at the time of marriage, such as a law degree or medical degree, you may wish to obtain a prenuptial agreement which will prevent that degree from being considered a marital asset.

Considerations for Drafting An Agreement
If you are exploring the possibility of a premarital agreement, you should consult with an attorney in your state who has experience drafting prenuptial agreements. The requirements for drafting a valid prenuptial agreement vary significantly from state to state. Further, if you have sufficient assets to require a prenuptial agreement, the cost of having an attorney draft the agreement will probably seem quite reasonable, and the attorney fee can be viewed as a form of insurance in the event that the agreement is subsequently held invalid - the attorney will likely carry malpractice insurance which could provide some recompense in the event that the agreement fails due to the attorney's negligence. While for a multi-million dollar estate, a prenuptial agreement may cost thousands of dollars to prepare, that is a small amount in proportion to the estate.

You may wish to consider increasing the benefits provided to the less wealthy spouse in the event of major life events such as the birth of children, or in the event that the marriage persists. Depending upon the circumstances, you may also wish to set an expiration date for the prenuptial agreement, such that if the marriage lasts for a certain amount of time the agreement is no longer effective, or that the parties must agree at that time to renew it.

You should note up front that you cannot cover every contingency in a prenuptial agreement. Nothing you declare in a premarital agreement about child custody or child support for children born during the marriage would be enforceable.

If you wish to utilize a prenuptial agreement, please be aware that you will have to provide an honest recitation of your assets as part of that process. If it is discovered that you have hidden assets or misrepresented the size of your estate, you may not be able to enforce the contract.

You should seek to offer a fair prenuptial agreement, as a premarital agreement that would leave the less wealthy spouse destititute would probably not be enforced by a court. Some states look at fairness not only when the agreement is signed, but also when it is enforced. In those jurisdictions, changes in a spouse's health, financial status, or employability may render invalid a previously enforceable agreement. A lawyer experienced with prenuptial agreements can guide you through these issues.

Prenupital and Postnupital Agreements

New York recognizes prenuptial and postnuptial agreements. The difference between them is: A prenuptial agreement is executed before marriage and a postnuptial agreement is executed after marriage.

Nuptial agreements are mistakenly considered to be only for the rich. Anyone with substantial assets, people who are remarried, and others should consider entering into a prenuptial or postnuptial agreement.Nupital agreements ensure that if either part wishes to resign from a unification they will each wal away with the assets they entered in with.

The purpose of a nupital agreement is simple: Asset Protection

Most people realize how many marriages end in divorce. While no one ever believes he or she will be part of the one out of three that will end in divorce, some believe it is prudent to engage in some premarital financial planning to avoid future disputes in the event something happens. Some even see it as a way to enter into marriage mroe quickly, while protecting themselves in the event that it doesn't work out.

There is nothing wrong with planning for contingency, including a problematic marriage, no matter how slight the possibility. The best part about Prenuptial agreements can be for a finite length of time, so if you believe your marriage will be at its peak after two years, then the prenup can simply dissolve after two years.


Anyone can get a prenuptial agreement. The majority of people requesting a prenuptial agreement typically fit into one or more of the following three categories:

Remarriage - When you have seen firsthand that not all marriages work out.
Vastly different economic circumstances - When you want to protect your assets until you are sure that the marriage will work.
-Future dispute avoidance - When you want to be prudent and avoid costly litigation over property distribution if the marriage does not work out.
-Peace of mind - Marriage is big step. A prenuptial agreement can take some of the anxiety away by letting you know what will happen if it turns out that you and your future spouse are incompatible partners

Prenuptial and postnuptial agreements must be drafted properly to be enforceable. In addition, they can be an obvious factor in a divorce.

Eric Gansberg has over twenty years experience handling family law matters, including drafting and litigating prenuptial and postnuptial agreements in Straten Island including: Clifton, Concord, and Grant City. In addition, they are a valuable resource for clients. Because of our experience and knowledge, we can assist clients in anticipating potential future disputes and helping them avoid those disagreements if the marriage fails.