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AgreementsShould I Consider a Prenup: The Debate After New York Court Invalidates A Pre-Nuptial Agreement

March 26, 2013

I did not recall a New York divorce case garnering so much discussion as the one I wrote about last week.   In Cioffi-Petrakis v. Petrakis,  the Appellate Division invalidated a pre-nuptial agreement because it found that the wife was coerced into signing the pre nup  as a result of the husband’s misrepresentations, which were, of course, not incorporated within the agreement.


Virtually all the blogs and articles, I read were critical of the decision, which found the court’s opinion to be unprecedented and, potentially, opening the floodgates to litigation challenging the validity of every agreement.


The decision seems to have spurred debate about every facet of pre nuptial agreements. Some writers urge pre nuptial agreements that are helpful for all, but necessary for some, while others argue that they have a disastrous effect on marriages.


In PreNups for Some, Money Talk for All, Kathleen Miller, urges, as I do, that prenuptial agreements are particularly well suited  for  those who have sizeable wealth, own a business or are entering into a second marriage with significant personal assets.    More importantly, she suggests that the couple use the pre nuptial negotiation to:

negotiate the financial terms of their marriage and each partner’s role before saying their vows. Financial issues to discuss should include bill paying, earnings, career goals, short- and long-term financial goals, estate planning in the event of death, divorce or disability; how income taxes are to be paid; how a pension will be shared; who will pay to defend a tax audit; and who will pay for expenses in the case of a divorce.


Lauie Israel, on the other hand, suggests that Pre-Nuptial Agreements Are Bad for Marital Health.  She argues the negotiation “changes the entire connection and contract of a marriage by taking away one of its major pillars: building a secure financial future together.”  She argues that the negotiations leading up to the pre-nup are corrosive.


Eric Newton, points out that in the absence of a formal agreement, You Already Have A Pre-Nuptial Agreement; you default to your state’s laws covering divorce and the division of property.


W. Bradford Wilcox, director of the National Marriage Project,  argues that If You Want A Prenup, You Don’t Want Marriage:

My research suggests that couples who embrace a generous orientation toward their marriage, as well as those who take a dim view of divorce, are significantly more likely to be happy in their marriages. A National Center for Family and Marriage Research study finds that couples who share joint bank accounts are less likely to get divorced. In fact, married couples who do not pool their income are 145 percent more likely to end up in divorce court, compared to couples who share a bank account.

So, the kind of partners who wish to hold something back from their spouse in a marriage — emotionally, practically and financially — and to look out for No. 1 instead are more likely to end up unhappy and divorced.

Whether you are willing to “default” to New York’s laws regarding maintenance and the distribution of assets, or intend to draft a customized pre-nuptial agreement, it would be beneficial to consult with a divorce attorney to understand your marital rights before you wed.

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