February, 2001
The Matrimonial Agreement Primer
by Joel R. Brandes and Ellen Seigerman Brandes
[Editor's note: The drafting and understanding of matrimonial
agreements is of prime importance to the new attorney, and requires
a thorough knowledge of statutory law. Here, in the first of a three
part installment, is a comprehensive article on matrimonial
agreements by two leading experts.]
Part I
It has become common practice, both before and after the marriage
ceremony, to have attorneys draft matrimonial agreements.
"Antenuptial" or "pre-nuptial" agreements refer to documents
executed before marriage. In our experience, the trials and
tribulations of negotiation become a significant reason why two
lovers may not marry. "Opting-out" or "post-nuptial" agreements are
those made between spouses during marriage, where they failed to
execute an antenuptial agreement when the prospect of divorce or
dissolution was not a factor, or during a reconciliation after a
separation. "Separation" and "property settlement" agreements, which
are sometimes known as "stipulations", usually refer to agreements
made before or during a separation of the spouses, or during
litigation by spouses who are married and intend to live separate or
dissolve their marriage. Each of these agreements governs the
respective rights and obligations of spouses in the event of a
dissolution.
The public policy of each state encourages those who are married or
about to be married to "opt out" of the statutory system and to
create their own provisions for support and property division upon
the dissolution of a marriage.
An agreement made before or during the marriage is usually valid and
enforceable in a matrimonial action if the agreement is in writing,
voluntarily signed by the parties, and acknowledged, where required.
The necessary formalities vary from state to state. These agreements
generally include a provision to make a testamentary provision or a
waiver of any right to elect against the provisions of a will;
provisions for the ownership, division or distribution of separate,
community or marital property; provisions for the amount and
duration of maintenance or child support, and other terms and
conditions related to the marriage relationship; and provisions for
the custody, care, education and maintenance of any child of the
parties.
Each state's public policy limits what may and may not be covered in
these agreements, and should be given careful scrutiny before the
drafting of any documents. In most jurisdictions marriage is
considered a fiduciary relationship and agreements between spouses
are subject to strict standards. Their terms must be fair and
reasonable at the time of the making of the agreement. While the
permissible subject matter of such agreements has been greatly
expanded in recent years there remain limitations upon their terms.
To be enforceable and to "opt out" of the statutory system, the
matrimonial agreement must not violate the declaration of public
policy expressed in state statutes. For example, in many states
parties are not free to waive their duty to provide support for the
other if that party is about to become a public charge. [see "Beyond
the Bar", January, 2001, "Case Law Update", "It Ain't Over Even When
It's Over"] The public policy of most states is to ensure that minor
children receive adequate financial support from their parents. The
terms of a settlement agreement must provide for the welfare of the
children. An inadequate child support provision is usually voidable
and cannot bind an appropriate court from remedying the inadequacy,
nor can it bind a parent from seeking to remedy the inadequacy. Many
states prohibit parents from waiving child support or providing for
arbitration of custody disputes. At most, parents may allocate
custody rights and child support duties, so long as their terms are
not detrimental to the welfare of the children.
While there is restricted freedom of the parties to contract
regarding custody and child support, they have relative freedom to
waive inheritance rights, to fix the amount and duration of
maintenance, and to distribute property as they see fit, by an
agreement.
Parties are encouraged to reach an agreement and to settle between
themselves. In this article we will list and define the essential
clauses that should be part of these agreements.
Consideration:
The consideration for an antenuptial agreement is the mutual promise
to marry. The consideration for separation agreements or "opting
out" marital agreements are the mutual promises contained in the
agreements. These agreements are generally authorized by the
Domestic Relations Law of the particular state, as long as they
comply with the statutory requirements; "consideration" may be
unnecessary.
Effective Date:
The antenuptial agreement becomes effective upon the marriage of the
parties; it should specifically provide that it becomes effective
upon the marriage.
Separate Residence:
In a separation agreement, a provision providing for the parties'
separation must be in the agreement, (i.e., "The Parties will live
separate and apart as if such parties were single and unmarried.")
This is not, however, authorization to engage in adultery.
Non-Molestation Clause:
This clause requires each spouse to leave the other alone during the
period of the parties' separation and not to interfere with the
other or sue to compel a resumption of cohabitation. A covenant
against molestation in a separation agreement is an independent
condition, and its breach does not terminate the agreement or
relieve the other spouse from his or her obligations.
Debts:
This clause designates the party responsible for past, present and
future debts, or specifies the division of obligations. It should
also provide the penalty for a breach.
Mutual Releases/General Release:
Each discharges the other, his/her heirs, executors,
representatives, etc., from all past claims under law (except causes
of action for divorce, separation or breach of the agreement). A
general release clause is the standard format for this provision.
Mutual Waiver and Discharge of Rights in Estates:
This provision assures that each party waives the right to take an
elective share against the estate of the other, to act as
administrator or executor of the estate of the other, including the
right to inherit from the other pursuant to a previously executed
will. As the caption indicates, rights to claim in the estate of the
other party are waived. This provision does not in any way eliminate
or reduce the rights of children.
To be continued...
Joel Brandes, a member of the New York Bar, is a Fellow of the
American Academy of Matrimonial Lawyers, a Fellow of the
International Academy of Matrimonial Lawyers, and maintains offices
in Garden City, N.Y., and New York City. He is the author of Law and
the Family, New York, Second Edition, Revised (nine volumes, West
Group), co-author of Law and the Family New York Forms (four
volumes, West Group), and writes a monthly column on matrimonial and
family law. He maintains a web site "New York Divorce and Family
Law" at www.nysdivorce.com
Ellen Seigerman Brandes is a member of the New Jersey and New York
bars, maintains offices in Parsippany, New Jersey, and is of counsel
to NEW YORK DIVORCE AND FAMILY LAW REPORTER ™ She is a member of the New
Jersey Bar Association (Family Law and Women in the Law sections), a
former member of the Association of Trial Lawyers of America (ATLA),
and serves as a participant in New Jersey's Matrimonial Early
Settlement Panel Program.
For editorial comments or suggestions contact
Alan Miller
Phone
651.687.6173
Fax
651.687.5542
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