Best Practices For Drafting Agreements Made Before or During the Marriage

Agreements can be executed before a marriage as prenuptial agreements, during a marriage as postnuptial agreements, and as part of ending a marriage as separation agreements. Different jurisdictions have different requirements and/or guidelines for the enforceability for each type of agreement; but some general principles relating to drafting techniques and appropriate subject matter can be applied across all jurisdictions. While it is important to understand the specific laws applicable to the jurisdiction governing each agreement, this course will provide universal practice tips designed to aid in counseling all clients and drafting effective and enforceable agreements. 

Presented by Emily S. Pollock and Kelly A. Frawley, partners in the New York matrimonial and family law department of Kasowitz Benson Torres LLP, this discussion provides an informative overview of best practices and practical considerations in drafting agreements.

Learning Objectives:

1. Describe the difference between prenuptial, postnuptial, and separation agreements and identify the kinds of issues that may be addressed (and those that should not be addressed) with each
2. Discuss considerations for clients evaluating whether to obtain a prenuptial agreement
3. Review ways a party may try to set aside a prenuptial agreement and how to draft with those in mind
4. Address how to help parties who are married and wish to modify a prenuptial agreement and/or enter into a new postnuptial agreement
5. Explore how drafting considerations for a postnuptial agreement may differ from those for prenuptial agreements
6. Address the role of separation agreements in the divorce process and how that may affect drafting
7. Identify enforceability challenges with separation agreements
8. Examine common drafting errors that can impact an agreement between spouses