Need a Pre-Nup? Use a Lawyer not a Napkin.

There is a rumor out in internet land that Steven Spielberg and his first wife wrote their prenup on a napkin without any legal representation, and which was later declared void with his wife receiving around $100 million i 1989.  Regardless of the truth of the statement, it highlights an important lesson that even Kanye West echos in his hit song. “We Want Prenup!”

I am a strong proponent of prenuptial agreements.  A properly worded agreement can save couples thousands of dollars in legal fees if they get divorced.  However, as Mr. Spielberg learned the hard way, a prenuptial agreement must meet certain formalities to be valid.

In NY, under Domestic Relations Law section 236(B)(3), an agreement made by the parties, before or during the marriage, is valid and enforceable if:

  1. The agreement is in writing
  2. The agreement is subscribed by the parties; and
  3. The agreement is acknowledged in the same manner required to entitle a deed to be recorded

Most issues arise with the third criteria.  It is not necessary that the certificate of acknowledgement contain the precise language set forth in section 309-a of the Real Property Law.  The courts hold that there are two aspects to an acknowledgment: the oral declaration of the signer of the document and the written certificate, generally prepared by a notary public. As long as both elements are present, the acknowledgement will be upheld.

Additionally, parties may sign the agreement in counterparts.  In Pulver v Pulver, 40 AD3d 1315 [3d Dept 2007], the parties signed the prenuptial agreement on the same day, however they each signed and acknowledged before a notary a separate document, at different locations, and when they each signed their agreement, the line for the other party’s signature was blank.  The Court held that the fact that the agreement was signed by the parties at separate locations did not render it invalid.  The Court went on to state that even though the agreements were signed at separate locations, the documents were identical.  Additionally, plaintiff conceded that he understood before signing the agreement that even though neither document would be signed by both parties, the terms would be binding upon both parties.  See Pulver, 40 AD3d at 1317

To avoid complications such as were had in Pulver, our agreements provide  that it may be signed in counterparts and that the document will be valid when each party has signed it.

Even if Spielberg and his first wife were cleaver enough to comply with the formalities to make an agreement valid, I doubt that Mr. Jurassic Park would know exactly how to word a prenuptial to make the substantive provisions enforceable.  Although prenups are not romantic, they are necessary.  A detailed prenup can avoid parties huge headaches and even larger legal bills down the road.  So remember, although good ideas have come from napkins, a prenup is not one of them.