Best Practices For Drafting Agreements Made Before or During A Marriage

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Course Information

Time 60 Minutes
Difficulty Beginner

Course Description

Agreements can be executed before a marriage as prenuptial agreements, during a marriage as postnuptial agreements, and as part of ending a marriage as separation agreements. Different jurisdictions have different requirements and/or guidelines for the enforceability for each type of agreement; but some general principles relating to drafting techniques and appropriate subject matter can be applied across all jurisdictions. While it is important to understand the specific laws applicable to the jurisdiction governing each agreement, this course will provide universal practice tips designed to aid in counseling all clients and drafting effective and enforceable agreements. 

Presented by Emily S. Pollock and Kelly A. Frawley, partners in the New York matrimonial and family law department of Kasowitz Benson Torres LLP, this discussion provides an informative overview of best practices and practical considerations in drafting agreements.

Learning Objectives:

  1. Describe the difference between prenuptial, postnuptial, and separation agreements and identify the kinds of issues that may be addressed (and those that should not be addressed) with each
  2. Discuss considerations for clients evaluating whether to obtain a prenuptial agreement
  3. Review ways a party may try to set aside a prenuptial agreement and how to draft with those in mind
  4. Address how to help parties who are married and wish to modify a prenuptial agreement and/or enter into a new postnuptial agreement
  5. Explore how drafting considerations for a postnuptial agreement may differ from those for prenuptial agreements
  6. Address the role of separation agreements in the divorce process and how that may affect drafting
  7. Identify enforceability challenges with separation agreements
  8. Examine common drafting errors that can impact an agreement between spouses

Credit Information

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Emily Pollock

Kasowitz Benson Torres LLP

Emily S. Pollock is a partner with the matrimonial department of Kasowitz Benson Torres LLP, and has been practicing exclusively as a matrimonial attorney for the past nine years. Emily’s practice focuses on disputes involving divorce, equitable distribution, custody, visitation, child and spousal support, paternity and other areas of family and matrimonial practice, including representing individuals in drafting and negotiating prenuptial and post-nuptial agreements.

Prior to joining Kasowitz, Emily served as a law clerk to the Honorable Paul H. Anderson of the Minnesota Supreme Court and then practiced securities litigation as an associate with Gibson, Dunn & Crutcher, LLP. She obtained her J.D., magna cum laude, from the University of Minnesota Law School in 2002 and a B.A. in psychology from the University of Chicago in 1996.

Emily is on the legislation committees of both the New York Women’s Bar Association and the New York State Bar, Family law Section. She is recognized as a "Rising Star" in the 2014 edition of New York Metro Super Lawyers. Emily also has been quoted on matrimonial issues in various publications, including Essence Magazine, has appeared as a guest discussing prenuptial agreements on the podcast $mart Women, and co-authored the article, How Getting a Job Can Work for Your Client During Divorce, for Family Lawyer Magazine.

Emily lives on the Upper West Side with her four- year-old son, Henry.

Kelly Frawley

Kasowitz Benson Torres LLP

Kelly A. Frawley is a partner at Kasowitz Benson Torres LLP where she has been practicing exclusively in the matrimonial and family law department since 2007.  She negotiates and litigates all aspects of matrimonial and family law including equitable distribution, maintenance, child support, custody and parenting time.

Prior to joining the firm, Kelly served as an Assistant District Attorney at the New York County District Attorney’s handling narcotics and firearms cases, including as lead counsel in fourteen felony trials from jury selection through verdict. 

Kelly is a co-chairperson of the Public Service and Education Committee and a member of the Executive Committee of the New York State Bar Association Family Law Section.

Kelly graduated St. John’s University with a Bachelor of Arts in Economics in 2000 and St. John’s University School of Law with a Juris Doctor in 2004. She was named by Super Lawyers as a Rising Star in Family Law in 2013, 2014 and 2015.

She resides on the Upper West Side of Manhattan with her husband.