Can prenuptial agreements be made “bulletproof,” that is, immune from the challenges and vagaries of litigation? Perhaps not entirely, but with certain precautions, many of those agreements can be made more invulnerable. I spoke on this topic at a recent meeting of the New York State Bar Association’s Family Law and Matrimonial section. Given the level of interest, I thought it appropriate to formulate a more thorough discussion of the subject.
Prenuptial agreements are a mainstay of matrimonial practice today. They serve as a means of avoiding much of the endless litigation that a divorce can turn into. But, the practice of drafting them is filled with minefields. It falls to the practitioner to do far more than fill names into a form agreement. The lawyer must think, carefully, of possible contingencies, and provide for them in the agreement, because if a situation is not covered in an agreement, a court is not permitted to fill in what the parties’ agreement must have intended. The lack of a provision does not create an ambiguity allowing a court to use parol evidence. Reiss v. Financial Performance, 97 N.Y.2d 195 (2001).
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