A prenuptial (antenuptial) agreement is a contract between prospective spouses that specifies their rights and obligations during their upcoming marriage. Such agreements are drafted in anticipation of the marriage and should be done sufficiently in advance so as to avoid the claim by either party that it was entered into under duress on the eve of marriage. Unlike separation agreements where the relationship of the parties has already deteriorated, preparing a prenuptial agreement is further complicated by the desire to protect one’s financial and other interests while avoiding antagonizing one’s fiancée.

Prenuptial agreements cover a broad range of topics from protection of premarital assets, including business interests and passive assets, maintenance and spousal support or the denial thereof, use and occupancy of the marital residence, custody and care of unborn children, and child support therefore, as well as rights of inheritance and life insurance upon demise.

New York Courts generally permit parties to plot their own course during the marriage but will nonetheless scrutinize the agreement to make sure it is devoid of overreaching. While normally the burden of proof would be on the party challenging the fairness of a prenuptial agreement, where there is a marked imbalance between the parties leading to the conclusion of "probable" undue and unfair advantage, the burden shifts to the proponent of the prenuptial agreement to show freedom from fraud, deception or undue influence. Consultation with an experienced matrimonial lawyer is critical in the drafting and implementation of a prenuptial agreement that will survive judicial scrutiny.