This is the part where I say that I'm not your lawyer. I don't represent you. This is not legal "advice," but merely legal "information." So, you cannot and should not rely on anything said herein as "advice," and you should neither take or refrain from taking any action based on anything contained herein.
Now that that little formality is out of the way, we can begin taking a look at the kinds of terms that lawyers and courts often wrestle with when clients pay a few thousand dollars more during the drafting phase of a pre-nuptial agreement.
1. Reproductive Rights & Genetic Materials: With LGBT issues at the forefront of family law, these provisions are becoming increasingly standard in pre-nuptial agreements between LGBT couples. Yet, the LGBT community is not the sole beneficiary of these clauses. Women have challenged a pre-nuptial agreement, all the way to the state's highest court, for the right to use their ex-husband's sperm, or for the right to have a child using the cryogenically preserved fertilized pre-zygotes of her ex-husband and her. Sounds crazy? Not really, especially when those genetic materials could represent either party's last opportunity to have a child that is biologically their own. This becomes a tug of war between "destruction" and "creation" of life, only this time, this tug of war is taking place "outside" the body of any particular individual. Lastly, these clauses are overwhelmingly designed to protect heterosexual men. The problem is, they offer only a limited remedy, and only against the other party to the agreement. Nevertheless, these clauses on genetic materials will likely serve as the basis for the male version of Roe v. Wade, especially in a test case where sperm is used to give birth to, say, fifty (50) children - all without the man's consent.
Genetic Materials. “Genetic Materials” means any ribonucleic acid (“RNA”) or deoxyribonucleic acid (“DNA”) naturally present, naturally occurring or produced by the natural person of the Husband or the Wife, including without limitation, the male reproductive cells (i.e., “sperm cells”) and the female reproductive cells (i.e., “egg cells”).
No Donative Intent. Notwithstanding anything to the contrary, the mere act of transferring possession, custody or control, or the mere fact that a party may have come into possession, custody or control, of the other party’s RNA, DNA, sperm cells or egg cells, cannot and shall not be deemed as an intent to make a gift by the person to whom such RNA, DNA, sperm cells or egg cells originally belonged to and were a part of prior to such transfer of possession, custody or control occurring. No donative intent shall exist with respect a party having any right to own or use the RNA, DNA, sperm cells or egg cells of the other party, unless the consent of both Parties is given in a writing signed and acknowledged by the Parties in the same manner required to record a deed conveying real property.
In non-lawyer speak, that means you can take a cumshot to the face, but you can't use it to have a baby.
Destruction over Creation. If the Parties have caused or created any fertilized pre-zygote, then any and all such female egg cells of the Wife that have been fertilized with the male sperm cell of the Husband shall be immediately destroyed upon either party’s request, and shall not be allowed to develop any further or result in the birth of a living child, unless the consent of both Parties is given in a writing signed and acknowledged by the Parties in the same manner required to record a deed conveying real property.
This provision is interesting, because it does not only apply to the "birth" of a living child, but also "further development" of the pre-zygote. There are those long progeny of tort cases where the parents have to donate the parts of one child (effectively killing it), just so that the other child may live. The loophole around medical ethics and murder has been to simply take the cells of a developing fetus, under the guise of an abortion procedure. On one hand, some people may feel that this is worse than an abortion itself, because the very purpose of allowing life to develop was with the advance intent of prematurely destroying it, albiet, to save another life. For moral and personal reasons, these provisions are gaining popularity, even in traditionally liberal states like New York.
2. Evidence: Now, I don't want to think about the back-story behind how the following provisions came into being, but I imagine it was the legal birth child of an attorney to some crime boss or mob wife.
Privilege for Confidential Marital Communications. Notwithstanding anything to the contrary, any and all communications between the Husband and the Wife, during the course of their marriage, are made and shall be deemed to be made in reliance upon the intimacy of the marital relationship, and are intended by both Parties to remain confidential and private.
Spousal Privilege. The Parties understand that a married person may not be called to testify against their spouse in a criminal trial. The Parties understand that the evidentiary privilege described in the foregoing sentence does not apply between “former” spouses (i.e., upon divorce). The Parties understand that for as long as two persons are married, the spousal privilege applies to communications made between spouses both during and prior to their marriage. The Parties also understand that the law of evidence allows for persons who are currently married to waive the spousal privilege and testify against their spouse, under the theory that if a person is willing to testify against their spouse, then the marital relationship has probably deteriorated to such a point that there is not much use left in the spousal privilege with respect to protecting the marital relationship. The Parties expressly disagree with this view of the law of evidence, especially in light of the strong-arm coercive bargaining tactics employed by law enforcement and prosecutors in the criminal context. Therefore, notwithstanding the foregoing and anything to the contrary, the Husband and the Wife agree, covenant, promise and warrant that neither the Husband nor the Wife shall waive the spousal privilege or testify against the other in a criminal proceeding so long as they are still married to each other.
3. Reputation: This one is my personal favorite, and I'm honestly shocked by the amount of pre-nuptial agreements that don't contain it. Regardless of the parties' financial circumstnaces, "reputation" is something that all parties normally want to protect. The last thing anyone wants, during or following a divorce, is backlash on Facebook, or badmouthing to the children, or to friends, or at a person's place of employment.
Non-disparagement. The Parties agree that they shall take no action or make any statement, directly or indirectly, which is intended, or would reasonably be expected, to harm the reputation of the other, or which would reasonably be expected to lead to unwanted or unfavorable publicity to the other, regardless whether any such statement is true or defamatory; provided, however, that either party may (a) commence a non-frivolous civil action against the other party and assert non-frivolous claims against the other party to enforce the terms of this Agreement, and (b) either party may commence an action for an annulment of the marriage for any reason, and (c) either party may commence an action for a no fault divorce due to irreconcilable differences, and (d) either party may move for custody or visitation of any children, provided, however, that the party moving for custody or visitation does not take any action or make any statement that would reasonably be expected to harm the reputation of the other party.
4. Tax Matters: First, if one person is overpaying their tax liabilities and is entitled to a refund, but the other person is underpaying, and both people are filing jointly, how do they split the refund? Alternatively, who pays for any penalties as a result of an underpayment? These are important questions that need answers ahead of time. Second, if your spouse says he made only $100,000.00, but it turns out he really made $400,000.00 (because the other $300,000.00 was in cash), by filing a joint tax return, are you "admitting" that he only made $100,000.00, or were you intending to commit tax fraud? This is also an important consideration, unless you plan on auditing your spouse each year. Third and lastly, the person with the higher income is the one who will receive the greatest tax benefit from being able to claim any child on their tax returns. So, this should not be a harrassment bargaining chip that's left open.
Tax Liabilities. Each party shall pay all taxes upon or attributable to his or her separate assets or income, out of his or her own separate income or property; provided, however, that nothing in this paragraph shall be construed to prevent the filing by the Parties of joint tax returns.
Tax Refunds. During any particular tax year, if the Parties file their individual income tax returns as married filing jointly, then the Parties shall each compute (separately): (a) any and all payments made towards the payment of tax liabilities for federal, state and local individual income taxes (hereinafter, “Paid-in Amount”), and (b) the fraction, (i) the numerator of which is the individual party’s “Adjusted Gross Income” (“AGI”) as that term is used and defined pursuant to the Internal Revenue Code and the Internal Revenue Service’s rules and regulations, and (ii) the denominator of which is the Parties’ AGI as reported on their joint tax return, and (c) the total tax liability of the Parties as reported on their joint tax return. The product of (b) and (c) shall be deemed the amount of tax liability attributable to each individual party for purposes of this Section (hereinafter, “Individual Tax Contribution”). Each party shall be entitled to receive, from the amount of any tax “refund” check or payment made by any Federal, state or local government agency, the amount his or her “Paid-in Amount” exceeds his or her “Individual Tax Contribution.”
Marital Estate. With respect to any tax return previously filed by a party, such party shall indemnify and hold the other party harmless from any liability of responsibility for the payment of any taxes owed, interest, or penalty that is owed by him or her. The obligation of any said tax obligation shall not be to the marital estate, and if paid from the marital estate shall be reimbursable to the other party to the extent their financial interest in the marital estate is diminished in any way as a result thereof.
No Admission. Each party is relying solely on the representations and truthfulness of any statements the other makes with respect to any tax matters, including without limitation, the sources of their income, the amount of their income, the character of their income, and the uses of their property. As such, any statement made in an individual tax return, where the Parties elect to file as married filing jointly, with respect to the income or other tax information by one party shall not be deemed as an admission by the other party. Notwithstanding the foregoing, any representation or statement a party makes regarding that party’s own separate income or property may be deemed as an admission by that same party.
Form 8332. In the event the Parties have parental rights and liabilities with respect to the same child, the Parties agree, covenant and promise that the party earning the higher taxable income (without accounting for the effect of claiming the dependency and personal exemption for any child) shall be entitled to claim the dependency and personal exemption for any such child. The party earning the lesser taxable income shall cooperate and promptly execute any and all documents necessary to effectuate the terms this Section.
5. No Merger: During a divorce, liability can be based on a court order, or by contract. When a court issues a judgment, any agreement between the parties may be "merged" with the judgment. That means that the agreement is "destroyed," and the judgment is the only thing that entitles the parties to relief. This provision prevents that from happening, unless of course, you want a court to effectively toss aside your agreement.
This Agreement shall not be invalidated or otherwise affected by any decree or judgment of separation, divorce, annulment, dissolution, or other form of matrimonial relief made in any court in any action which may hereafter be instituted by either party against the other for separation, divorce, annulment, dissolution, or other form of matrimonial relief. Each party agrees that the provisions of this Agreement shall be submitted to any court in which either party may seek a judgment or decree of divorce, separation, annulment, dissolution, or other form of matrimonial relief and that the provisions of this Agreement shall be incorporated into said judgment or decree with such specificity as the court shall deem permissible and by reference as may be appropriate under the law and rules of the court. Notwithstanding such incorporation, however, the covenants, duties, obligations, representations, rights, and terms of this Agreement shall not merge therein, and this Agreement may be enforced independently of said decree or judgment in accordance with the terms thereof.
6. Merger Clause: A merger clause is "contractual" in nature. It's saying that "the terms of the contract" are what they are, based on whatever is in the written agremeent. That's all that a merger clause says. For that reason, a merger clause is not a bar to a claim for "fraud in the inducement." Google the Ciofi-Petrakis case (2013). Where a court finds that a party was "induced" into signing an agreement as a result of "fraud," the entire agreement is void. A merger clause does not prevent this from happening, because it only speaks to what the "terms" of the agreement are, not what the "circumstanes surrounding the execution of the agreement" are.
This Agreement contains the entire agreement and understanding between the Parties with regard to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements and understandings between the Parties. There are no oral agreements or understandings between the Parties that are not set forth in this Agreement. Any claimed agreements between the Parties that are not set forth in this Agreement are void, and are irrelevant in the interpretation of this Agreement.
7. Disclaimer of Extraneous Representations: Were you starting to get anxious? Well, relax. Where the merger clause fails, the "disclaimer" prevails. A "disclaimer" is something between a "waiver" and a "representation." In effect, it's an "admission," that's admissible into evidence as an admission by a party opponent. When a party seeks to set aside an agreement on the basis of fraud, an admission that no representations outside the agreement were relied upon, and that no such representations were material, etc., throws a powerful wrench in an opponent's ability to satisfy all of the elements of fraud. Contracts that contain this clause essentially close the door to a subsequent tort/fraud attack on enforceability.
The Parties further represent that there are no oral or written representations that have been made prior to or contemporaneously with this Agreement between the Parties which are not set forth and fully incorporated in this Agreement. Any claimed oral or written representations between the Parties that are not set forth and fully incorporated in this Agreement are void. The Parties represent that any and all oral and written representations not contained in or varying from any of the terms of this Agreement were not relied upon and did not induce any party to this Agreement into executing this Agreement of otherwise accepting the terms of this Agreement, and no such oral or written representation was material, in any way, to this Agreement.
8. Enforceability: This is not a redundant term. Remember, just like a pre-nuptial agreement, the marriage contract is itself also a contract. And just like how a pre-nuptial agreement can be invalidated on the basis of fraud, so can the marriage contract. What this clause does is essentially place reliance on the enforceability of the pre-nuptial agreement, almost as a condition precedent to entering into the marriage contract. Thus, if a party subsequently challenges the enforceability of the pre-nuptial agreement, guess what happens to the marriage contract? That's right. If the court tosses out the pre-nupt, then the non-moving party is now moving for an "annulment" of the marraige, as opposed to a "divorce." What's the difference? An annulment is as if the marriage never happened (i.e., the marriage was "null and void," and never legally existed).
Each party acknowledges receipt of a fully executed duplicate original of this Agreement, has had an ample opportunity to read it and fully understand the same before signing it. This Agreement was drafted and negotiated by both Parties. Each party represents that he or she has had ample and sufficient opportunity to review this Agreement and consult with legal counsel, and has either done so or freely and voluntarily elected not to do so. Each party represents that he or she has entered into this Agreement voluntarily and of his or her own free will, and not as a result of any fraud, undue influence, duress, procedural or substantive unconscionability. The Husband and the Wife, individually, hereby covenant, promise, represent and warrant he or she shall not: (a) assert or claim that this Agreement was executed as a result of fraud, undue influence, duress, procedural or substantive unconscionability, or (b) seek to invalidate, rescind, or set aside this Agreement, in part or in whole, on the basis of fraud, undue influence, duress, procedural or substantive unconscionability. The Husband and the Wife are each relying of all of the representations made herein this Agreement and any exhibit attached hereto, and any and all such representations are material inducements to entering into a marital relationship together, executing a marriage license and agreeing to be joined in marriage as husband and wife.
9. Survival: On that note, don't forget that the terms of a pre-nupt are generally intended to continue past the date of divorce, or annulment, as the case may be. You probably don't want to get divorced only to find out that a judge believes that your non-disparagement clause no longer applies, because you're no longer married.
The terms of this Agreement shall survive the annulment, or dissolution of the marriage, and any final divorce degree as between the Parties.