So, it’s over. You and your spouse have decided that you are through trying to make the marriage work. Now what? Well, now you both get attorneys and try to figure out what to do about the assets, and the kids. But if you have a prenup, it should be pretty simple to enforce, unless it is not so simple to enforce. In which case, you may have a problem.
Prenups are tricky. Done correctly, they protect you and your spouse from future squabbles about money and real estate. Done incorrectly, they can cost you sometimes tens of thousands of dollars in legal fees. The fact that you and your spouse signed the agreement is not enough for it to be valid. Sometimes, unfortunately, prenups are not worth the paper they are written on.
What are the chances that your prenup will survive, even if you entered into it over 30 years ago when you and your spouse were both broke (and by the way, you are now worth in excess of $20 million dollars?) Well, here in New York the court will look at such things as:
a) how soon after the prenup was signed did the marriage occur? If it is less than 90 days, then you could have a problem. It is always better to have it signed at least six months before the wedding to avoid any appearance that you coerced your spouse into signing it.
b) Did you both have a mediator or attorney work with you to hash out the details? As opposed to doing it yourselves? Especially if one of you is an attorney and the other is not? Because if the latter occurred, then the argument that there was unequal bargaining power and the non-attorney spouse did not know what they were signing gets a bit more credible. Versus, if the parties each had independent counsel or a mediator present at all times, and assisting with all the negotiation and drafting. If these sessions were photographed, videotaped, or audiotaped, even better.
c) Be very clear in the pre-nup what the agreement covers. Do not neglect such things as educational degrees, real estate, boats, and businesses, art work and jewelry. Be very specific in the agreement about the distribution in the event. Of course if your marriage takes place before any of these things are a part of your reality, it helps if the prenup contains boilerplate language that sweeps broadly enough to cover these things in the event they are later acquired. So to the extent that you anticipated these issues in the prenup, the more likely the prenup will “survive your divorce.”
d) The prenup should basically pass the “reasonableness” test. If it is so unreasonable and unfair as to shock the conscience at the time it was executed, it will be challenged, and it could be set aside on that basis alone. So don’t be so grossly unfair in the distribution of assets that the judge is likely to find the agreement void on its face. In other words, if you are Donald Trump and the prenup totally disinherits the spouse in the event of a divorce, I don’t think the prenup will be upheld in New York. There has to be an element of fairness in it.