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MAKING IT STICK: SOME OF THE KEYS TO CREATING AN ENFORCEABLE PRENUPTIAL AGREEMENT UNDER NEW YORK LAW:

Most prenuptial agreements are intended to endure for the marital life of the parties, whether that life is ended by death, divorce or legal separation. Accordingly, it is essential that a prenuptial agreement be prepared so that it may be viable, and will withstand any attack, under a wide array of circumstances. Because matrimonial law is complex (particularly in New York), it is essential that each party retain a qualified matrimonial lawyer, with experience in drafting and negotiating premarital agreements. Beyond retaining an experienced attorney, there are a variety of things that you can do to ensure that your prenuptial agreement is not subject to future questions as to its validity. Here are some of the keys:

• Full and Accurate Financial Disclosure By Both Parties: The most crucial requirement for a lasting and enforceable prenuptial agreement is complete and accurate financial disclosure by both parties. In some jurisdictions, a prenuptial agreement is void, ab initio, without such disclosure. Regardless of where you intend to reside, disclosure is essential because an agreement's fairness (and, thus, its validity) is adjudged on the basis whether the agreement is fair as of the date that it is entered into. In the absence of written financial disclosure, one of the parties may later try to attack the agreement by claiming that he or she would not have entered into it if they had knowledge of the other's parties' financial condition. The Agreement should have, at a minimum: (a) each party's statement of assets and liabilities attached as exhibits; and (b) a provision, in the body of the agreement, acknowledging that full disclosure by both parties has been exchanged.
  
  
• Do Not Wait Until the Week of the Wedding: An agreement should be negotiated, drafted and signed as far in advance of the wedding as possible. If you wait until the last minute, you increase the risk that one party will claim that he or she was subjected to duress. Lawyers representing clients regarding prenuptial agreements should maintain copies of all drafts, as well as correspondence relating to the parties' negotiations, all of which will help establish that the agreement was the product of meaningful negotiations between the parties and their respective counsel.
  
  
• Property Acknowledgment by Both Parties: Under New York's Domestic Relations Law, a premarital agreement (as well as any other type of matrimonial agreement) must be notarized and acknowledged in the same manner as is required for a recorded deed. It is important that you and your counsel carefully consider the legal requirements relating to form, execution and acknowledgment of any jurisdiction in which you and your future spouse may later reside.

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Prior results do not guarantee a similar outcome in current or future matters.

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