Let’s Imagine a Ban on Prenuptial Agreements

New York Law Journal

Let us begin this writing/reading experience by clearing the air right from the start: the answer is “no”—this author does not believe that prenuptial agreements should be banned.  We live in a free country, with free will, and the freedom to enter into contracts is a staple of American jurisprudence.

We tell our clients, rightfully so, that prenuptial agreements are intended to provide certainty to a point where the soon to be newlyweds can rest assured that issues of equitable distribution, spousal support, and rights on death will be safely walled off from the prospect of litigation, or, at least the scope of potential disputes will be limited if judicial intervention becomes necessary.

But if that is the case, then it begs the question why we keep seeing prenuptial agreements at the center of, yes, divorce litigation.  There also appears to be a growing sentiment, at least in the podcast ecosystem, that prenuptial agreements may not be worth the paper they are written on.

The title of this article is designed to provoke a discussion about the viability of prenuptial agreements.  A cookie cutter, redundant discussion of the elemental components of a prenuptial agreement will, in my view, get us nowhere and answer none of our questions.

Instead, we ought to look at how prenuptial agreements are being interpreted and enforced by our courts to better understand why we, as divorce lawyers, oftentimes see prenuptial agreements as uniquely complex legal instruments that are fraught with the potential for peril.

To better understand that vantage point, there is value in examining what is transpiring in the case of Linda Gaudette v. Bruce Gaudette, 2023 N.Y. Slip Op. 6786 (N.Y. App. Div. 2023).  The Appellate Division, Third Department’s decision in Gaudette is yet another example of how prenuptial agreements are finding themselves smack dab in the middle of divorce litigation.

The parties in Gaudette signed their prenuptial agreement in May 1977, followed by their wedding in June 1977.  The defendant-husband moved to enforce the prenuptial agreement, and the Trial Court denied that motion, finding that the prenuptial agreement included terms which were “vague and undefined.”  The Trial Court equitably distributed the parties’ marital property after a bench trial, and the husband appealed.

The Third Department held that the Trial Court “skipped” the required steps of “resorting to extrinsic evidence—which may require an evidentiary hearing—to attempt to ascertain the parties’ intent” upon finding that the language of the prenuptial agreement was ambiguous.

The pertinent provisions of the prenuptial agreement were as follows:

Article II: The parties agreed to “contribute to the expense of the household in proportion to their respective means.”  The agreement did not define “means”, although Black’s Law Dictionary defines it to include “income” and “available resources.” However, “expense of the household” was found to be ambiguous.

Article III: This Article required the husband to spend a specified sum on “household furniture and household effects” within the first year of marriage and imposed a duty to replace such items as they “become worn or destroyed.” This Article was also found to be ambiguous, although the Cambridge Dictionary defines “furniture” as referring to “things such as chairs, tables, beds, cupboards, etc. that are put into a house … to make it suitable and comfortable for living”, while “household effects” refers to “tangible or movable personal property other than money” which “are used in connection with a home.” Still, the Third Department found it ambiguous as to whether or not the parties intended for “appliances and other household items” to be covered by Article III.

At this juncture, given the immediately preceding paragraph of this article, it may behoove us all to take a collective moment to gather our thoughts, reduce our heart rates, and, at least for me, consider whether or not Windex falls under the umbrella of “household effects.” And you wonder why this article is titled as it is.

Among other errors, the Trial Court should have also resorted to extrinsic evidence to determine if the parties “had an objective intent which would trigger the husband’s duty to replace household furniture or effects that became worn” – defined as “having become deteriorated by use” according to the Dictionary.

Regarding “expense[s] of the household” (Article II), the parties’ submissions and “subsequent conduct” (meeting once per month to review expenses whereby the husband gave his wife money to cover “his half”) revealed that such phrase included “the bills and carrying costs for the marital residence as well as other common joint marital expenses, such as gifts for family and friends, rendering article II sufficient definite.”

The parties’ submissions, however, did not resolve Article III’s ambiguity, e.g., “it is unclear whether marital gifts or joint expenditures may be included in the calculation to satisfy the husband’s duty to ‘expend a specified sum within one year from the date of the marriage in the acquisition of household furniture and household effects,’ or whether appliances and other household items are encompassed within those terms”.

As a result of the continued ambiguity that permeated Article III, the Third Department reversed the portion of the judgment of divorce that involved the equitable distribution of the parties’ assets and remitted the matter to the Trial Court which “should have held an evidentiary hearing” to ascertain the parties’ intent.

Where does this leave us, other than mystified?  I’ll leave you with this: I was, in part, trained by a litigator way back when after graduating law school who started every deposition preparation session with a witness by saying this: “A deposition is not a normal conversation.”

Building on that, a prenuptial agreement is not a normal document.  Many will say that there is risk with using everyday, plain English language that is built into our psyche over so many years in the text of prenuptial agreements.

Instead, the argument goes, we should use very precise, shiny and lawyerly sounding words to express what a contract is intended to accomplish.  But that too has risk—“household effects” sounds very lawyerly, does it not?  Yet, I’ve used that term in separation agreements, and I’m sure you have as well.  On second thought, did you ever ask your spouse, friend, family member, or other, if they needed to replace any of their “household effects”?

Prenuptial agreements tend to be lengthy documents, and Gaudette shows us why, i.e., if there is any possibility of ambiguity, we, as lawyers, tend to add layer upon layer of definitions.  If there is any question about whether or not an ambiguity exists, I suppose we can look to the definition of “ambiguity” at

Lawyers are reputed to overthink what non-lawyers may say is common knowledge.  However, with prenuptial agreements, it may in fact be better to overthink, so as to ensure that each and every word on the page can be readily understood by anyone off the street reading it for the first time.  Because, if those words cannot be readily understood, then you might find yourself in the midst of a trial over whether or not one spouse did or did not spend sufficient funds on dishwashers, washers, dryers, or who knows what else during the course of a marriage.

"Let’s Imagine a Ban on Prenuptial Agreements," by Alan R. Feigenbaum was published in the New York Law Journal on March 5, 2024.

Reprinted with permission from the March 5, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.