Many people see prenuptial agreements as a poor way to start a marriage because they seem to anticipate its failure.  But with nearly 50,000 New York marriages ending in divorce in 2009, getting married without a prenuptial agreement—also called an antenuptial agreement or prenup—can be a risky proposition.

A prenuptial agreement is essentially a contract a couple enters prior to marriage that establishes in advance what will occur in case of divorce.  It may make provisions for property division, clearly establish marital and personal property, set forth maintenance or alimony payments from one spouse to the other, and plan out the care and custody of minor children.

Prenuptial agreements can be especially useful in marriages where the spouses have unequal economic capabilities. In essence, such agreements limit the risk of loss to the economically advantaged spouse while still providing a guaranteed settlement to the economically disadvantaged spouse.  But regardless, a prenuptial agreement can simplify the process of divorce and limit the necessity of settlement negotiations or litigation.

In fact, a prenuptial agreement can even help foster and preserve a happy marriage.  While people regard a prenup primarily as divorce planning, it can also contain provisions for during the course of the marriage.  A good prenuptial agreement can establish or clarify the rights and duties of each spouse during the duration of the marriage. It can help avoid common sources of marital discord—such as financial disagreements or disputes over child rearing—by resolving them before they occur.

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