We may think the prenuptial agreement (“prenup”) is a new tool used by matrimonial lawyers to help minimize the risk involved in a divorce. However, prenups are ancient and were used throughout history to protect the rights of women. For example, in the Jewish faith the prenup is called the Ketubah. Traditionally the Ketubah provided that a husband would give his wife a certain amount of money in the event of a divorce. Likewise, in France, the prenup agreement derived from the dowry and was first recorded in the ninth Century. Seymour J. Reisman, Prenuptial Agreements in History, N.Y. Times, April 22, 1990.
Today, rather than protect the rights of women, today’s prenups are often used to minimize the wealthier spouse’s financial exposure in the event of a divorce. Another use of prenups is to split the marital assets in a way to give each party the assets they truly want and value. In a divorce action, if the parties cannot agree, the court will determine how to divide the assets.
The goal of many prenup agreements is to give the less monied spouse fewer assets and income than he or she would receive under that state’s divorce law. Therefore, by their nature, these types of prenups may be viewed as inherently unfair. However, courts in both New York and New Jersey favor prenups because of the strong public policy that divorcing couples should decide their own affairs, settle their own differences and minimize the need for litigation. Therefore, without more, an attempt to invalidate a prenup simply because the less monied spouse would have gotten more assets or monetary support under state law will likely be unsuccessful.
Even though courts generally favor prenups, they are not ironclad. The less monied spouse may regret her or his decision of signing a prenup and will, at the time of the divorce, attempt to have a court throw it out. To prevent this from happening, you should follow these important steps:
- First, you and your fiancé should each be represented by an attorney for the drafting and signing of the prenup;
- Second, you and your fiancé should fully disclose to each other all income, assets and financial obligations;
- Third, even though your fiancé has agreed to receive less money and assets than she or he would receive under state law, the amount given to her or him in the prenup must not be unreasonable;
- Fourth, you and your fiancé must sign the prenup as dictated by state law;
- The prenup must include all essential terms required under your state’s law;
- Your prenup should solely address the financial aspects to be addressed in a divorce. It should not make unreasonable demands of a non-financial nature. For example, a prenup should not include provisions demanding that your spouse cooks dinner every night and/or engage in sexual intercourse at least three times per week.
As you can see from the list, many of the requirements are common sense, but there are also specific requirements in each state that must be met. For those requirements, you should consult with a qualified attorney.