PRE-NUP: BE SPECIFIC IN YOUR SCHEDULES

The exhibits and schedules that are attached to an agreement are part of the agreement and may override the intent of the general terms of the agreement. That was the lesson in Foley v. Foley, 2017 NY Slip Op 8435 - NY: Appellate Div., 3rd Dept. 2017:

"The husband argues that, under the plain meaning of the terms of the agreement, his pension and deferred compensation accounts were separate property. We disagree. Exhibit A, though a "simple list," included nine categories of assets: "A" cash accounts; "B" securities; "C" brokers margin accounts; "D" loans to others and accounts receivable from others; "E" value of any business interests; "F" cash surrender value of life insurance; "G" vehicles; "H" real estate; and "I" vested interests in trusts. In the column after categories "A", "B" and "C" the parties wrote "NONE." The column at category "D" identified a mortgage. Column "F" was a specific life insurance policy, the parties identified three vehicles at column "G", and, for column "H," the parties identified 15 separate parcels of real property.

We discern no ambiguity in this prenuptial agreement. Though we are mindful that the general terms of the agreement provided that all property acquired by the parties prior to the marriage was separate property, "including any increases thereto," the husband had both a pension and a deferred compensation account prior to the marriage and these accounts could have been identified very easily and been included with the "simple combined list" attached to the agreement. Instead, the parties simply ignored the category altogether. By failing to reference these accounts in the more specific "A," we, like Supreme Court, find that the parties did not intend to include either as separate property (see Herr v Herr, 97 AD3d at 963)."