Drafting Prenuptial and Spousal Settlement Agreements

136 Pages·2014·9.67 MB·English

by  Judy Shepard

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Drafting Prenuptial and Spousal Settlement Agreements: From Routine
to Complex Issues and Clauses

Friday, June 13, 2014 9:00 AM – 1:00 AM

I. Please rate each speaker in this session on a scale of 1 - 4
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Presentation Content Written Materials

Robert M. Freedman

Stephen Gassman

Arlene Harris

Ralph M. Randazzo

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III If NYCLA were creating a CLE program specifically tailored to your practice needs, what
topics or issues would you want to see presented?
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T
D P
RAFTING RENUPTIAL
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T
S
AND POUSAL
I
T S
ETTLEMENT
S
A : F
GREEMENTS ROM
N
I
R C
OUTINE TO OMPLEX

E
I C
SSUES AND LAUSES
L

C
Prepared in connection with a Continuing Legal Education course presented
at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for June 13, 2014
A

L
Program Chair: Elliott Scheinberg, Esq.

C

Faculty: Stephen Gassman, Gassman Baiamonte Betts, PC; Arlene Harris,
Y Kaye Scholer LLP; Robert M. Freedman, Schiff Hardin LLP; Ralph M. Randazzo,
Randazzo & Randazzo LLP
N
This course has been approved in accordance with the requirements of the New York State Continuing Legal Education
Board for a maximum of 4 Transitional and Non-Transitional credit hours: 2 Professional Practice/Law Practice
Management and 2 Skills.
This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 4
hours of total CLE credits. Of these, 0 qualifies as hours of credit for ethics/professionalism, and 0 qualify as hours of
credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.
ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of
continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification
Drafting Prenuptial and Spousal Settlement Agreements: From Routine to
Complex Issues and Clauses
June 13, 2014; 9:00 AM to 1:00 PM

The New York State CLE Board Regulations require all accredited CLE
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Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association
Continuing Legal Education Institute
14 Vesey Street, New York, N.Y. 10007 • [phone]

Drafting Prenuptial and Spousal Settlement Agreements: From Routine to
Complex Issues and Clauses

Friday, June 13, 2014, 9:00 AM - 1:00 PM

Program Chair: Elliott Scheinberg, Esq.

AGENDA

8:30 AM – 9:00 AM Registration

9:00 AM – 9:10 PM Introduction and Announcements

9:10 AM – 10:00 AM Considerations when Drafting Prenups and Spousal
Agreements for the LGBT Community
• Anticipating portability, tax consequences, custody, etc., in
New York and Mini-DOMA States
• Sample provisions
Ralph M. Randazzo, Randazzo & Randazzo LLP

10:00 AM – 10:50 AM Prenuptial and Spousal Settlement Agreements in Light of
Petrakis v. Petrakis
• The role of the general and specific merger clauses
• Sample provisions
Stephen Gassman, Gassman Baiamonte Betts, PC

10:50 AM – 11:00 AM BREAK

11:00 AM –11:50 AM Considerations Regarding Estates and Trusts When
Drafting Prenup and Settlement Agreements
• Sample provisions
Arlene Harris, Kaye Scholer LLP

11:50 AM –12:40 PM Considerations Regarding Elder Law When Drafting
Prenup and Spousal Settlement Agreements for Older
Clients
• What to include; Sample provisions
Robert M. Freedman, Schiff Hardin LLP

12:40 PM – 1:00 PM Closing Remarks; Questions and Answers

RANDAZZO & RANDAZZO, L.L.P.
464 NEW YORK AVENUE, SUITE 100
HUNTINGTON, NEW YORK 11743
[phone]
FACSIMILE [phone]

215 PARK AVENUE SOUTH, SUITE 1402
SHERYL L. RANDAZZO - NY, PA NEW YORK, NY 10003
RALPH M. RANDAZZO - NY, MD, DC [phone]

With the availability of marriage to same-sex couples under the Marriage Equality Act in New
York and in other jurisdictions, many same sex couples began marrying, some with legal counsel, but
many without the benefit of legal counsel. Now, with Federal marriage recognition, even more
couples are marrying. Because these couples are often marrying later in life with substantially
separate assets, they benefit from legal advice and a prenuptial agreement in advance of their
marriage and often seek a postnuptial after their marriage.
For you, the facts presented by these clients are frequently similar to second marriage
situations. Often the couples do not share children, have different contingent beneficiaries, maintain
separate assets and are substantially financially independent of one another. Many same-sex
marriages entered since marriage rights became widely available and recognized are between couples
in their sixties, seventies and eighties and/or couples with substantial asset and income diversity.
Couples marry without any awareness of the attendant obligations, health care costs and maintenance
burdens upon divorce. (In my opinion, some long term couples marry for the right to divorce as they
have complex comingling of assets and need a structure for division without gift tax liabilities or
transfer limitations (QDRO.))
While younger couples marry as well, it is often older clients with accumulated separate assets
or deteriorating health who present the most significant issues, such as the health care (nursing home
costs) spousal support obligation. Unlike many of the rights and obligations of marriage, this
obligation cannot be waived or eliminated in a Pre- or Post-Nuptial Agreement.
In these materials I briefly discuss some of the unique issues presented by same sex couples
who wish to marry or previously married without really understanding the attendant obligations. I
also present several provisions we use to attempt to address the possibility that a couple may live, at
the time of divorce, in a jurisdiction where their marriage is not recognized or legal.

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In the drafting of prenuptial agreements confirm the gender provisions of your documents are
accurate. It is a minor issue that can reinforce client confidence that you have sensitivity to and
experience with same sex couples. Most standard provisions within an agreement that refer to “his
and her” need to be rewritten.
Finally, for some individuals the protection of a prenuptial is insufficient. For such clients
consider creating and funding an asset protection trust in advance of marriage.

Paragraphs For Consideration When Planning For Same Sex Couples

Controlling law and the enforceability of the agreement are of particular import to
couples residing in a jurisdiction where their marriage is illegal or not recognized.

WHEREAS, FIANCÉ and CLIENT agree that, no matter where they reside in the
future, their economic obligations from one to the other, including any right to support from
the other and to equitable distribution shall be governed entirely by this Agreement; and

WHEREAS, this Agreement shall be governed by the laws of the State of New York,
and no other law, including the law of community or marital property or equitable distribution
of any state. Further, neither party shall ever make an application for another state’s law to
apply to this Agreement or to the parties’ rights as a married couple regardless of where either
of them resides; and

WHEREAS, the parties acknowledge that this Agreement has been executed in the
State of New York; and

WHEREAS, the parties hereby submit to the jurisdiction of the Courts of the State of
New York; and

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