WRITING YOUR OWN AGREEMENTS, ARE THEY ENFORCEABLE?

By Sari M. Friedman, General Counsel
Fathers Rights Association NY and LI

People frequently ask why they can't draft their own agreements before or during marriage if both spouses agree. Will these personally executed agreements be enforceable in court?
The answer is yes and no.

The Rules

Agreements by couples can be made before or during marriage but all provisions of these agreements must be carefully spelled out in writing, and signed by both parties before a notary public. Oral agreements are not enforceable.

What can these agreements cover?

  • Provisions for finances in case of death
  • Waiver of rights to share in the other party's assets in case of death
  • Provisions for distribution of money and support in the event of divorce or separation
  • Provisions for the custody and support of children
What Are the Incentives?

The primary reason for seeking personal agreements prior to or during marriage is to avoid litigation in the event the marriage relationship dissolves. By agreeing privately on the terms of the dissolution, one or both parties is seeking to opt out of the equitable distribution and support laws of New York State.

But Are These Agreements Enforceable?

Sometimes they are, and sometimes they are not. If, for example, the financial agreement, at the time the agreement is made, is fair and reasonable, and not unconscionable at the time of finalization of the marriage, the agreement will be enforceable. Of course, this assumes that there was complete and honest disclosures of each party's finances at the time the agreement was signed. It would be a good idea to fill out a financial disclosure affidavit when writing your own agreements in this fashion. The Courts are less bound to parties' agreements on support and custody of children. These agreements may have seemed fair and reasonable at the time of signing, but conditions may have changed drastically at the time of divorce or separation. At that time, a parent may maintain that circumstances have changed warranting a different custodial and visitation arrangement. The courts are never bound to limit support below what they believe equity dictates. After all, children are not parties to the agreements. More importantly, the courts believe children must be supported and cannot be forced to suffer because a parent made a poor decision when signing the original agreement.

Conclusion

So may I, or may I not write my own agreements before or during marriage?
Certainly you can do that, but make sure your agreements are documented and signed before a notary public, that they are executed under proper circumstances, are free of fraud, or undue influence at signing. And to be absolutely sure these agreements will be enforceable in the event of divorce or separation, seek legal advice from counsel. The attorney will help to identify potential future problems. You are not a lawyer and what you may think is proper and enforceable, may not be. So play it smart and be safe.

Ask a lawyer to look the agreement over.