There is a big change looming in the law regarding antenuptial agreements taking effect August 1, 2024, and it is good. But, it might go unnoticed with some of the other changes taking center stage, including changes to the laws regarding spousal maintenance.
In order to enjoy the presumption that the antenuptial agreement you have drafted for your client is procedurally fair, the agreement is entered into and executed no less than seven days before the marriage. When I read this, I smiled! Usually I am a bit afraid of change, and learning/remembering new things. But this is a rule I will happily share and enforce with clients who need a prenup.
No matter how hard I’ve tried in the past, I’ve repeatedly been unsuccessful in getting clients to get their prenups done early, so they can be free of this stress in the last few days and weeks leading up to their wedding. Instead, it’s often a scramble the day before to get things finalized, coordinated and signed. I even once had a client leave without signing, and the marriage never occurred. I’ve often wondered if that situation could have been avoided if that couple would have given themselves more time to sort out their issues.
Now, I have a legal basis to require clients to get done early. But don’t fear, the new law does also provide that an agreement that is entered into and executed less than seven days before the marriage loses the presumption of enforceability, the proponent of the agreement then has the burden of proof but it could still be shown. However, this presumption is a big loss. So, have your clients get this done at least a week in advance. Everyone will be delighted able to go into the last week truly celebrating!
But, beware of the second big change. In determining whether an antenuptial agreement is substantively fair, the court must now consider whether it is unconscionable to a party either by the agreement’s terms or as the result of drastically changed circumstances originally not foreseen when the agreement was created, such that enforcement would no longer comport with the reasonable expectations of the parties at the time of execution. This leaves open a whole world of uncertainty, in an area of law where the hope and expectation is for things to be certain. This may leave you and your client feeling less like celebrating.