With people wary of the sometimes contentious litigation that arises in a divorce, prenuptial (“prenups”) and postnuptial (“postnups”) agreements, which used to be written for mainly for the benefit of the wealthy, have now become far more standard for couples considering marriage, and for couples who are married, but are considering settling, in advance, many of the economic issues that might arise in a divorce action.

These documents are mainly used to identity what is referred to as “separate property” — assets that belonged to one party prior to the marriage — to make certain that nothing in the course of the marriage could be construed to mean that the asset has been merged into a marital asset — i.e., one that belongs to both parties. In New York State, the laws regarding separate and marital property are pretty clear, but a prenup can still save time and money if the marriage fails and one party decides to litigate over ownership issues. Prenups and postnups are also used to set the rules for any upcoming divorce action, by defining, in advance, a couple’s agreement as to support, custody, child support, asset distribution, and other issues.

With these agreements now being written more and more often, and with clients depending on these agreements to stand up to judicial scrutiny in case they are challenged in a matrimonial action, and with the law regarding these agreements still in a developmental stage, it is crucial that a Family Law Attorney who prepares such an agreement for you be fully informed regarding the latest rulings in cases where the one spouse seeks to have a pre- or postnuptial agreement overturned so that the agreement has the best chance of surviving a court challenge to the document.

You might think that an agreement signed by both parties would be binding, but in fact, there are several methods by which these agreements can be challenged in court and declared invalid. For instance, prenups signed just days before a wedding can be interpreted years later as having been signed “under duress,” a finding which can invalidate the agreement. In addition, issues of “fraud” and “unconscionability” (unfairness at the time of signing) can also be used to upset a pre- or postnup.

The New York courts are still making new decisions regarding these agreements and their enforceability, so parties seeking to protect pre-marital assets or agreements as to financial compensation in the case of a divorce must first find a Family Law Attorney who is fully informed of these new court decisions. At Breiter and Gura, we have had extensive experience in this field, and while no one can predict how the New York Court System will view these matters in the future, we are prepared to help you draw up or respond to a pre- or postnuptial agreement in a way that best guarantees that it will stand up in court.