Do You Need A Prenuptial Agreement?

The courts of New York have always had an extremely favorable attitude towards settlement agreements between spouses. From the court's perspective, the settlement completes the divorce case with less cost and no potential for reversal on appeal. A good settlement is often said to be one which neither spouse is thrilled about, but both spouses accept. The settlement terms can be tailored with precision, while the court decision may have a cookie-cutter or sledge hammer quality.

There is one very important proviso: the written agreement must be properly signed and acknowledged by a notary public.

There are some subjects that can be addressed in the written agreement, such as financial arrangements. There are some subjects that the New York courts will not rubber stamp, such as child custody. There are also specific contract requirements for child support, retirement assets, and estate waivers.

The experienced divorce lawyer, like me, has a library of settlement agreements and the court precedent at hand to back up every provision in the settlement document. The experienced divorce lawyer won't be ground down or misled in a negotiating session. You need that strength and confidence. Your divorce settlement is not what the accountants refer to as a "routine transaction in the ordinary course of business." This is your life, and your children's lives and you want to do it right. Call me at at 212-499-0940 for a free consultation.

Be Prepared Through Prenuptial, Postnuptial And Opting Out Agreements

There are many alternatives to a trial to reach a final conclusion in a court of law. My personal philosophy is to consider the parameters of the court result as the settlement terms. Because I know what those parameters are, I know what to seek in the settlement. One skilled and experienced divorce lawyer, such as me, facing another skilled and experienced divorce lawyer, can save the spouses a lot of money and grief, because we will (hopefully) be direct and can craft the settlement document immediately.

The Benefits Of Prenuptial Agreements

You do not require a license or permission from New York state to date someone, or to fall in love, or have a child. But when you reach the stage of living together, getting married or having children, it makes good sense to consider a certain understanding that you and your partner might have and to "get it in writing". The best evidence of what the partners intended is what they wrote down on paper. In many ways that is the basis of our civilized society.

A prenuptial agreement can help your relationship by clearly setting down the financial rules and protecting your property if the marriage is not successful. The prenuptial agreement sometimes helps people to get past their trepidation about marriage. Then the written agreement gets stuffed in a drawer, never to see the light of day. Some prenuptial agreements contain a "sunset" provision, so that they automatically expire after a few years if neither spouse files a divorce action.

For many people, the idea of a prenuptial agreement is contrary to the romantic sentiments involved with two people joining together in marriage. However, most people entering into a marriage are intelligent enough to consider almost every other contingency ahead of time, without the sense of losing the romantic sentiments of the moment. Issues like where you will live, how much money and what kind of budget you will have, and how many children you would like to have - these are all common considerations for people to discuss before marriage. It makes sense that people would want to consider what might happen if things end up taking a turn for the worst in the marriage and being prepared for such an event.

The negotiation of the prenuptial agreement often resembles a game of tic-tac-toe. One participant has the early advantage. The other participant's strategy is to go forward with the marriage or not. Timing is very important. If you are the spouse who desires the prenuptial agreement, you should not wait until the last minute. The great baseball player Babe Ruth hit a lot of home runs. But he also struck out a lot. Your marriage does not need to be perfect. You can also protect your business and minimize the rancor and high cost of litigation with a postnuptial agreement.

Preparing for the worst in an intelligent way does not have to contradict the hope and joy you experience as you enter the marriage. I have the experience as a New York prenuptial agreement lawyer to help you balance your need to protect your interests for the event of a divorce down the road with your desire to maintain marital harmony. At the Robert G. Smith, PLLC law firm, you get an attorney with more than 35 years of experience handling these agreements. I have a track record of handling many high-asset and high-profile cases, as well many appearances on Court TV.

If drafted and executed in an effective manner, a prenuptial or postnuptial agreement could be tremendously valuable to you, helping you:

  • Minimize possible conflict and get the best results: Divorce is a primary psychosocial stressor according to the medical and mental health fields. When a person is in that situation, it is almost impossible to think clearly and make intelligent decisions that will be beneficial in the long term. When you prepare a prenuptial agreement before the marriage or a postnuptial agreement after marrying or entering into a domestic partnership, you have a much better chance of achieving better results because you are thinking in a clearer and more calculated way. Further, a prenup or postnup will streamline the process of property division and distribution, minimizing the stress that comes with a contentious, protracted divorce.
  • Minimize legal fees: The financial reality of divorce is that it can be expensive, and the costs increase as the time spent in the conflict increases, with added lawyer fees and court costs. Agreeing to many of the terms of a divorce well in advance can minimize these costs tremendously by speeding up the process.
  • Protect your assets: One of the chief considerations for the methods of distribution in New York is distinguishing marital property, which will be divided, from non-marital property, which is retained in toto by the possessing party. Especially in a high net worth divorce, prenuptial or postnuptial agreements can protect your assets, protect your business and protect your future.
  • Protecting your children's inheritance: Prenuptial and postnuptial agreements are popular devices for remarriages and blended families, as they are powerful tools for the spouses to set aside property, assets, and other valuables for their respective children.

ADR Alternative Dispute Resolution

There are many efficient alternative dispute procedures. They are usually referred to as "arbitration". By agreement, the spouses can submit to such a tribunal. But because important children's rights are involved, the court will usually have to approve any arbitration result.


Mediation has become very popular. The New York courts have also begun to embrace it as efficient, inexpensive and sometimes, especially in child custody contests, preferable to a trial in open court. However, the mediated result places emphasis on the agreement, not necessarily the terms. A bully can take advantage by being uncompromising, so I always recommend that the client have separate legal counsel before mediating any issues in the divorce case.

Collaborative Law

Collaborative law has many attractive qualities, but it can be expensive. In the collaborative process, each spouse has a separate lawyer, and each lawyer commits to settle the case and not take it to court. If the case is not settled, the clients might have all the expenses of a litigated case and then have to start all over.

If you are not married you can have a cohabitation agreement that sets down what the financial rules are in your household. I can prepare that document for you.

Learn More Today

Either contact me online or call my New York City office at 212-499-0940 for a free consultation.