Moriarty & Dee, Attorneys at Law, in Buffalo, New York.

Premarital Agreements:

Premarital agreements, sometimes referred to as antenuptial agreements, are contracts entered into prior to marriage which provide for the distribution of assets, payment of support, and other issues in the event of divorce. Properly prepared, and entered into in the absence of duress, fraud and/or overreaching, pre-marital contracts are binding and valid.

Such an agreement can be made after the parties marry and is referred to as a postmarital or postnuptial agreement.

In order to make sure that any premarital agreement will stand up at the time it is sought to be asserted, when divorce looms, it is important that the agreement was fairly made and entered into. Valid agreements will have followed the basic guidelines:

1. Each party, and particularly the party with the larger estate and most assets, who probably who wanted the agreement in the first place, will have disclosed, at least in general terms, the size and nature of his or her assets and income to the other party. It is helpful, although not absolutely necessary, to attach each party's financial statement to the agreement.

2. Notice of the desire to enter into a prenuptial agreement will be given to the other party well in advance of the wedding date so as to give the latter party the opportunity to either cancel his or her wedding plans or seek counsel to assure that the agreement is fair and reasonable, and not overreaching. In cases where prenuptial agreements fail, it is often because the agreement was presented to the unsuspecting party on the eve of or shortly before the wedding date, without any adequate opportunity on the part of that party to seek counsel, or reflect upon the agreement.

3. The party not seeking the agreement should be represented by counsel of his or her own choice, with adequate opportunity to that counsel to discuss with the party all terms and provisions of the agreement, and if necessary negotiate those terms and provisions.

4. In the event there is a religious wedding contract such as a Ketubah, caution should be taken to be sure the pre-nuptial agreement controls.

5. The parties should understand that some rights cannot be waived by premarital agreement. For example, a premarital agreement waiving ERISA benefits may not be valid. A number of cases have ruled that a pension plan beneficiary may not waive his or her ERISA rights in an antenuptial agreement. The Retirement Equity Act of 1984 requires a spouse to consent in writing in order to waive survivor benefits of a plan participant. Because one does not become a spouse until after marriage, those cases have held that the benefits cannot be waived until after the marriage takes place. In such cases, if such a waiver is sought, the agreement should obligate the waiving spouse to sign a written waiver after the marriage.

6. It is also against public policy to waive child support, and a number of cases has upheld the State's right to disregard such a waiver in the event of divorce.

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