Prenuptial Agreements and Postnuptial Agreements

New York Marital Agreements

Marriage is a significant milestone that combines the lives and assets of two people. As romantic as this union is, it also involves substantial legal and financial implications. In New York, where life moves at a fast pace and fortunes can change rapidly, it’s prudent and sometimes essential, for couples to consider the legal safeguards of prenuptial before marrying and postnuptial agreements during the course of a marriage. These legal tools can offer clarity and security, ensuring that both parties are protected financially and emotionally.

Differences Between Prenuptial Agreements and Postnuptial Agreements in New York

In New York, both prenuptial and postnuptial agreements are legal contracts between spouses that address various financial and property matters. However, they differ primarily in terms of timing and some specific legal considerations:

Both prenuptial agreements and postnuptial agreements are designed to establish each party’s entitlements and obligations with regard to various financial matters including maintenance, inheritance rights, and property distributions.  The essential difference between the two types of agreements is the timing.  By definition, a prenuptial agreement is created and executed before marriage.  A postnuptial agreement, on the other hand, is drafted and executed after the parties have married and during the course of the marriage.  Both agreements serve to protect individual interests and provide clarity and security regarding financial matters in a marriage, however, the timing and context of their creation can influence their content and the motivations behind them.

New York Prenuptial Agreements

A New York prenuptial agreement, often referred to as a “prenup,” is a contract entered into by a couple before marriage.  Prenups are a common method of asset planning and are more frequently becoming part of the “wedding planning” process. 

Requirements of a Prenuptial Agreement in New York

In New York, prenuptial agreements are governed by Domestic Relations Law §236(B)(3), which states:

An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Notwithstanding any other provision of law, an acknowledgment of an agreement made before marriage may be executed before any person authorized to solemnize a marriage pursuant to subdivisions one, two and three of section eleven of this chapter.

Additionally:

Such an agreement may include(1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; 2) provision for the ownership, division or distribution of separate and marital property;(3) provision for the amount and duration  of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of  the making  of the  agreement and are not unconscionable at the time of entry of final judgment.

Key Components of a Prenuptial Agreement in New York

1. Asset Division: Clearly delineates which assets are considered marital and which are separate. This can include property, investments, businesses, and other significant holdings.
2. Debt Allocation: Specifies how debts incurred before and during the marriage will be handled.  This frequently includes student loan debt.
3. Spousal Support: Determines the amount and duration of alimony payments, if any, that one spouse will provide to the other after a divorce.
4. Estate Planning: May include provisions for how property will be distributed upon death, which can be crucial for individuals with children from previous marriages.  Such provisions are commonly designed to protect children from prior relationships. 
5. Business Interests: Protects business assets and interests, ensuring that a spouse’s business remains intact and operational.

Advantages of Using Prenuptial Agreements in New York

Many people are understandably hesitant to engage in discussions and negotiations regarding prenuptial agreements in the weeks and months leading to a wedding but, nonetheless, it is frequently the best course of action to secure one’s financial stability and to avoid financial disagreements during the course of a marriage.  In New York, prenuptial agreements have many benefits including:

1. Clarity and Predictability: By clearly defining financial expectations and responsibilities, prenuptial agreements can reduce conflicts and misunderstandings.
2. Securing housing: Prenups frequently address a party’s right to remain in a marital residence for some period of time after commencement of a divorce, thereby providing greater stability. 
3. Protection of a Non-Monied Spouse: a New York prenup can provide and indeed guarantee certain payments or distributions to a non-monied spouse to ensure that he or she is not left penniless in the event of a divorce. 
4. Safeguarding Assets: Ensures that individual assets and family inheritances remain protected.
5. Debt Protection: Shields one spouse from the other’s pre-existing debts.
6. Business Continuity: Safeguards business interests and prevents disruption in operations.

New York Postnuptial Agreements

Whether triggered by marital difficulties, the desire to avoid potentially contentious litigation or simply the need to revise a prior agreement, postnuptial agreements (commonly referred to as “post-nups”) are increasingly common in New York.  Generally, a postnup is drafted and executed when a divorce is not imminent but, instead, when parties simply wish to preemptively address certain issues that would potentially be litigated during a divorce action. 

Requirements of a Postnuptial Agreement in New York

In New York, postnuptial agreements, like prenuptial agreements are governed by Domestic Relations Law §236(B)(3) which requires that such an agreement be made “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.”

Key Components of a Postnuptial Agreement in New York

Much like prenups, a post-nuptial agreement in New York can address property matters, debts, spousal support, housing concerns, business interests, estate planning / inheritances and many other financial concerns. 

Advantages of Using Postnuptial Agreements in New York

Postnuptial agreements, by definition, are executed after the wedding and during the marriage.  As such, postnuptial agreements are often preferred as they do not disrupt the otherwise busy pre-wedding months.

The Process of Creating a Prenuptial Agreement in New York

The process for drafting and executing a prenuptial agreement in New York involves several steps to ensure that the agreement is legally binding and fair to both parties.

Prenuptial Agreements in New York – Initial Discussion and Decision

Both parties are encouraged to openly discuss their intentions and reasons for wanting a prenuptial agreement and their willingness to enter into such an agreement. As with most joint financial decisions, it is important for both parties to understand each other’s perspectives and agree on the need for the agreement.  Each party is also encouraged to consult with their own attorney to understand their legal rights and obligations. Independent legal advice is crucial to ensure the agreement is fair and enforceable.

Full Financial Disclosure for a New York Prenup

While not explicitly required by statute, caselaw provides that, generally, both parties must fully disclose their financial situations, including all assets, debts, income, and any other relevant financial information. Lack of disclosure and transparency is a frequent basis for challenging and ultimately setting aside a prenuptial agreement.  Supporting documentation is not necessarily required but is often beneficial in the negotiation process.  This may be as simple as bank statements, investment accounts, property deeds, and tax returns but may be as complicated as expert appraisals, depending on the facts and circumstances of the case.

Negotiation of a Prenuptial Agreement in NY

The couple, with the assistance of their respective attorneys, will negotiate the terms of the prenuptial agreement. This includes decisions about asset division, spousal support, debt allocation, and other financial matters.  It is wise to begin negotiations several months before a wedding.

Drafting a New York Prenup

Once terms are agreed upon, the attorneys will draft the prenuptial agreement. The draft should clearly outline all agreed-upon terms and conditions.  Both parties should carefully review the draft agreement with their attorneys to ensure it accurately reflects their intentions and agreements.  Often, multiple drafts will be required with various revisions exchanged between the lawyers.

Executing a Prenuptial Agreement in New York

After the parties and attorneys have reviewed the agreement and determined that the document comports with each party’s understanding of the terms, the agreement may be signed and executed.  In executing, the agreement must be “subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.”  This requires, among other things, that each party sign in the presence of a notary public who will then notarize the agreement accordingly.  It is important to note that a New York prenuptial agreement does not need to be executed simultaneously by both parties. 

Often, several original copies will be executed to allow each of the parties to keep an original for their records.  Of course, it is wise for each party to store the original document in a safe and secure location, such as a safe deposit box.

Review of Prenuptial Agreements in New York

Commonly, one party will provide the other with a proposed draft of a New York prenuptial agreement in anticipation of a wedding and marriage.  At the Law Office of Louis L. Sternberg, P.C., we are frequently retained for the limited purpose of reviewing a prenuptial agreement that has previously been negotiated by another attorney.  This limited scope representation is a cost-effective way of protecting your interests and securing your future.

What a Prenuptial Agreement in New York Cannot Cover

Under New York law, Prenuptial agreements cannot decide future child custody arrangements. Public policy dictates that while parties are generally free to determine their own financial matters by way of a prenuptial agreement in New York, matters relating to children are excluded.  Instead, courts make custody decisions based on the best interests of the children at the time of the divorce or separation. 

Similarly, a New York prenuptial agreement cannot decide child support obligations of the parties prior to the divorce or separation. Child support is determined by law, in accordance with the Child Support Standards Act and the Courts will not be bound by any such provision contained in a prenuptial agreement in New York.

Important Considerations in New York Marital Agreements

Timing: It is advisable to start the process well in advance of the wedding to avoid any appearance of coercion or duress.

Independent Legal Advice: Each party having their own attorney is crucial to prevent claims of unfairness or lack of understanding.

Fairness to a Non-Monied Spouse: Courts may scrutinize prenuptial agreements for fairness, especially when skewed against a non-monied spouse. Agreements that are grossly one-sided or executed under pressure may not be enforceable.

Voluntariness:  Any marital agreement in New York, whether a prenuptial agreement or postnuptial agreement must be voluntarily executed by both parties.  If the agreement is a product of fraud or duress, it may be deemed unenforceable. 

New York Prenup FAQ

CONTACT OUR PRENUPTIAL AGREEMENT ATTORNEYS ON LONG ISLAND

Are you considering a prenuptial agreement before your marriage or experiencing concerned about enforcing your current agreement? Do you want to secure your future with a postnuptial agreement after your wedding? If so, it is essential to have the appropriate legal counsel before executing any agreement as your financial future is at stake.

Louis L. Sternberg, Esq., is highly skilled in negotiating and drafting postnuptial agreements. his approach is client-centered, focusing on understanding the specific needs and goals of each couple. This personalized service ensures that the agreements he drafts are not only legally sound but also reflective of the couple’s intentions and desires.  Our office has negotiated and drafted counsel prenuptial agreements in Suffolk County and Nassau County, New York.