Pre-Nuptial and Post-Nuptial Agreements
A prenuptial agreement (or "Pre-Nup") is a contract between you and your future spouse that is entered into before marriage and settles specific issues in the event of divorce or death. In a prenuptial agreement, both you and your future spouse disclose all the property, assets, and money (bank accounts) you own/hold. Then, rights and responsibilities for each spouse during the marriage are set. This includes how you will divide your money, property, and assets in the unlikely event of a divorce or death of one, or both of you.
A written prenuptial agreement is completely valid and can be enforced so long as it was entered with full disclosure of all assets by both sides and is fully executed.
A Prenuptial Agreement addresses many different subject matters, including:
Determining separate property: The property and assets you hold prior to marriage is classified as ‘separate property’. As long as this property is kept separate from your marital property (property you and your spouse obtain together,) the separate property shall remain as such during and after the marriage. Conversely, if you do not keep your separate property separate (in your name only) then although there is a pre-nup, such property may later be deemed as marital property and divided equally between both spouses in a divorce.
Determining marital property: The same way that separate property is classified, marital property is classified. Separate property can also be identified as marital if either spouse should want to do so.
Establishing maintenance: A pre-nup can establish the support (otherwise known as alimony) you or your spouse will pay to the other during or after a divorce --- it can also establish that there will be no support if you divorce.
Establishing child support for children of a prior marriage: If either spouse brings minor children into a marriage that the other spouse does not adopt, child support can be set forth to make sure the child(ren) are provided for should you enter a divorce.
Distinguishing pre-marriage debt: If either spouse brings in substantial debt to the marriage, the agreement can state that that debt remains their sole responsibility.
Child support and custody/visitation: Prenuptial agreements can address future child support and custody issues of child(ren) of the marriage. Per New York Law, a Court is obligated to determine issues of child support and custody and whether or not it is in the best interest of the child. As such, a pre-nup agreements’ terms regarding the children will be considered but cannot definitively resolve the matters as a whole.
It is recommended that the prenuptial agreement be reviewed by both sides along with their respective Attorneys and be fully executed before a Notary Public. This is to avoid any unwarranted claims that one spouse signed under duress, did not know what he/she signed, etc.
The laws and issues surrounding prenuptial agreements are complex. It is ideal to speak to an Attorney to understand your rights and responsibilities before signing (or drafting) one. Contact our office to speak to an Attorney today.
A Postnuptial Agreement (post-nup) Is practically the same as a prenuptial agreement, except that it is entered into after you and your spouse have gotten married. Essentially, postnuptial agreements cover the same topics as prenuptial agreements (see above.)
What are some reasons a person may want to enter a postnuptial agreement?
Some reasons couples may want to enter a postnuptial agreement are:
If there is a business involved, and the couple wants to distinguish marital and separate assets within the business.
If one spouse incurred significance debt before the marriage, and the other spouse wants to ensure they are not responsible for it.
There has been a loss of trust in the relationship.
Are postnuptial agreements enforceable?
Postnuptial agreements are enforceable in the state of new York but either of the spouses can challenge it. Like with prenuptial agreements, it should be reviewed by both spouses along with their respective Attorneys to avoid any conflict down the line.
If we did not have a prenuptial agreement or postnuptial, how will our property be distributed if we enter a divorce action?
Property that was separate (brought into the marriage or inherited) is likely to be considered separate and remain in the possession of that person. If the parties cannot come to an amicable resolution regarding the split of marital property, the property will be equitably distributed. The Court will determine where the property goes and how it is split. The Court’s decision is based on factors such as income, age, etc.