A prenuptial or postnuptial agreement is a contract between two parties that provides guidelines for the division of their assets in the event of their divorce or one partner’s death. Although this can be a sensitive subject, planning for all future possibilities can provide much-needed peace of mind.
About Prenuptial Agreements
A prenup can be used to create stipulations for the use and ownership of any assets, debts, and finances during a couple’s marriage. Examples of issues that may be determined in a prenuptial agreement include:
- Defining marital and solely-owned property. For example, an individual who owned a home before marrying may opt to retain sole ownership of the property, which means its value will not be divided in the event of a divorce.
- Providing for children from a prior marriage. This often includes allocating certain assets to go to one’s children, rather than one’s spouse, in the event of their death.
- Dividing debt. A prenup can ensure that any debt accrued prior to entering the marriage remains the sole responsibility of the individual who incurred it, which is particularly helpful when one partner has extensive student loan debts.
- Setting general financial parameters. Your prenup can determine how marital funds will be saved and divided during your marriage, which is useful when there is a large discrepancy between your salaries.
- Addressing other relevant marital concerns. This depends on the preferences of the couple but can include issues such as how to divide assets in the event of adultery or having the agreement expire after a certain number of years.
Please note that a prenuptial agreement cannot contain requirements for the custody or support of a couple’s children after their divorce. Unlike some other states, however, New York does allow couples to waive their spousal maintenance rights.
About Postnuptial Agreements
A postnuptial agreement is similar to a prenuptial agreement and covers the same general issues, but the contract is written and executed after the couple is already married. While less common than prenuptial agreements, postnuptial agreements are growing in popularity among couples who want to have added peace of mind.
Some reasons to consider a postnuptial agreement include:
- You want to protect your initial investment in a joint business owned with your spouse.
- You are getting a degree and will be entering a high paying career field.
- You have received a large inheritance you want to consider separate property.
- One spouse is planning to quit their job to say home with the child, and you want to make provisions for spousal maintenance in the event of a divorce.
Ensuring the Agreement Is Valid and Enforceable
Generally, a prenuptial or postnuptial agreement is presumed to be valid and, thus, enforceable. However, an individual can challenge the validity of the agreement under one of the following circumstances:
- The agreement was signed under coercion or duress.
- The agreement contains wildly unfair clauses that favor one partner.
- The agreement was made fraudulently, meaning that one partner misrepresented their financial and personal information to the other before they signed the agreement.
If the agreement contains clauses that cannot be legally enforced, such as a requirement that the couple maintains a specific lifestyle or a requirement regarding how many children the couple will have, that portion of the agreement may be cast aside while the valid portions are upheld.
A prenuptial or postnuptial agreement must be executed and acknowledged with the same formality as a property deed. In New York, this type of document does not need witnesses present at its signing in order to be valid. Rather, both partners’ signatures must be on the document, and this signing must be made before a notary public. Oral agreements and written agreements left unsigned are not valid.
Hiring an attorney who is familiar with the process of creating prenuptial or postnuptial agreements is the best way to ensure your interests are protected. Attorney Theodore Alatsas can answer your questions and walk you through the process of creating an agreement that is satisfactory to all parties. Whatever your reasons or the terms you wish to include, our firm can help create the right contract for your needs.
Alatsas Law Firm is conveniently located for residents of Brooklyn, Queens, and Staten Island. Our ground floor office is handicapped accessible with a subway stop and two bus lines nearby. Contact us today to schedule a free, no-obligation initial consultation to discuss creating your prenuptial or postnuptial agreement.