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Is That Prenup Really Fair?

July 17, 2013 By Joy Rosenthal

Lee and Carolyn were in love.  Carolyn loved Lee so much that she moved her children from Delaware to Long Island so they could be a family.  After 8 years of dating, Lee finally proposed.   Lee suggested a prenuptial agreement.  Carolyn was so relieved that they were finally getting married, that she said, “I’ll sign any piece of paper you put in front of me and I won’t even read it.”

And so he did.  Lee gave her the agreement his lawyer had drafted a few days before the wedding.  Carolyn’s lawyer, whom she met for the first time the day, she first saw the prenup, was chosen by Lee’s attorney.  The terms, she was told, were non-negotiable.  Carolyn signed it, crying, 45 minutes later.

Did I tell you that Lee was earning over $1 million per year running his own business while Carolyn was earning $5,000 per year as a part-time teacher’s aide?  Oh — and did I tell you that it said that if they divorce, Carolyn would only be entitled to the gifts Lee had explicitly given her?  No equitable distribution of assets, no maintenance (alimony), no appreciation of assets, no house, no car, nothing.  In other words, if they got divorced, Carolyn would be flat broke.

Fast forward over 10 years.  Now the couple is getting divorced.  The Nassau County Trial Court (CS v LS 202692/12)  just told Lee that the prenuptial agreement is invalid — for oh, so many reasons.  Here are his suggestions (paraphrased) for writing a valid Prenuptial agreement:

  • Make sure you each choose your own lawyer (even if one spouse is paying the legal fees for both attorneys).  Take the time to interview a few of them, to see if it is a good match for you.
  • Make sure you have time to really think about and understand what you are agreeing to.
  • Look carefully at the sheet where your spouse discloses his/her assets.  Does that make sense to you, given what you know?  Do you have questions?  Is the disclosure fair and adequate?
  • Think about the agreement – is it fair?  Will it leave both parties have enough to live on given their resources? To rebuild their lives?  Is one person rich and the other destitute?

These may seem obvious, but they are not always.  In other blog posts, I have written about why it may be important to have a prenuptial agreement.  They definitely have their place.  But go into it with an attitude of fairness, respect and dignity.

Funny, those are also the elements of a good marriage, aren’t they?

Filed Under: Divorce, Families, General, Marriage, Negotiation, Prenuptial Tagged With: divorce, family, finances, planning, pre-nup, win-win

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Rosenthal Law & Mediation
212.532.4704

Joy S. Rosenthal, Esq.
226 Prospect Park West #156
Brooklyn, NY 11215

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