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The Wall Street Journal recently posted an article about the increasingly popular prenuptial agreement.  A prenuptial agreement is a written contract entered into before marriage, or during marriage in the case of a postnuptial agreement, that discusses what will happen to the couple’s assets should the marriage end in divorce or death.

It is not unfathomable that in today’s economy people want to protect their assets before getting married.  Those with a successful career or a valuable stock portfolio are looking to safeguard these assets; couples entering into a second marriage want to ensure their children from a prior marriage acquire personal assets; young couples with wealthy parents want their inheritance to remain separate property.  How do they do this?  Prenuptial agreements.

In New York, Domestic Relations Law §236(B)(3) states, “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.” 

Case law also recognizes the enforceability of prenuptial agreements.  For example, in Eckstein v. Eckstein the New York Appellate Court stated that “A duly executed antenuptial [or prenuptial] agreement is given the same presumption of legality as any other contract, commercial or otherwise, and is not, regardless of the fairness and reasonableness of the agreement, burdened by a presumption of fraud arising from the subsequent confidential relationship of the parties.”  In Brassey v. Brassey, the court went on to state that “there is a heavy presumption that a deliberately prepared and executed written instrument manifests the true intention of the parties and that, therefore, a high order of evidence is necessary in order to overcome that presumption.”

If you are considering a prenuptial or postnuptial agreement the Long Island divorce attorney Jay D. Raxenberg can help.  Click here to schedule a complimentary consultation.

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