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One of the most difficult issues in family law is the negotiation of a prenuptial agreement. A properly executed prenuptial agreement in enforceable in New York. Prenuptial agreements are used to change the outcome in the event of a divorce. They were frequently used when there is a family business or children from a prior marriage.
The prenuptial agreement can provide that a certain asset will remain separate in the event of divorce. The problem is with when marital funds are used to maintain or add on to the separate asset. Prenuptial agreements can also provide for lump sums in lieu of equitable distribution and can alter amounts due under the maintenance statute.
The negotiation of a prenuptial agreement can become very emotional. It takes a cool head to navigate these waters and ultimately reach an agreement that both parties find acceptable.
Contrary to popular belief, it is difficult to set aside a prenuptial agreement. Where there has been full financial disclosure, and both sides had attorneys, it is very difficult to set aside the agreement. However, if there was no financial disclosure, a lack of meaningful negotiation or no attorney review, it is possible to set aside a prenuptial agreement. Courts strictly construe such agreements, and if an issue is not addressed in the agreement it will be decided under applicable New York State law.
Since the prenuptial agreement can control your financial future, it should be approached carefully. Any party enter entering such an agreement should absolutely have competent matrimonial counsel.