Prenuptial And Postnuptial Agreements
Prenuptial and postnuptial agreements are made between couples about to marry (prenuptial) or already married (postnuptial). Although once thought to be an arrangement made when one spouse brought a considerable amount of wealth or property to the marriage, agreements about divorce before or during the marriage are becoming a smart financial planning tool for practical people who want to protect their interests – whatever they may be.
At Randi L. Karmel, PLLC, our Manhattan prenuptial and postnuptial agreement attorney understands that sometimes things don’t work out no matter how well-intentioned the people involved are. And making decisions about the future during a time of extreme emotional strife can be very difficult. Having previously made important decisions while cooler heads prevailed can be a source of relief and comfort.
What is the Difference Between a Prenuptial and Postnuptial Agreement?
The only real difference between a prenuptial and a postnuptial agreement is the timing. One is made in anticipation of the marriage and one is made at some time after the marriage. With either agreement, the parties to the marriage can agree to rights between themselves concerning financial matters and can also decide their property rights in a way that is different than New York law.
A prenuptial agreement might be more likely to address property rights coming into a marriage and a postnuptial agreement might address more family considerations and situations that have taken place since the marriage began.
Why You Might Want to Have a Prenuptial or Postnuptial Agreement
Define the character of property – Generally, property that is owned by a spouse before marriage or is acquired during the marriage by gift or inheritance is considered separate property. Another property acquired during the marriage is considered marital property. Spouses may agree to characterize their property differently.
Divide property differently than state law – Under New York law, marital property will be divided in a way that is fair to the parties at the time of divorce based on certain factors the court takes into consideration. There may be reasons that a different property division is desired by the spouses.
Make provisions for spousal support – One spouse may have agreed to forego career options and be at a significant earnings disadvantage going forward after a divorce. An agreement can be made for one spouse to provide support for the other – both the amount to be paid and the duration of payments.
Describe wishes regarding children – Parents may want to make sure that children are provided for and may specify their preferences regarding custody, visitation, and support. However, when it comes to child custody and support, the state will intervene in the ‘best interests of the child’ and need not enforce anything that does not benefit a child.
How to Create an Enforceable Prenuptial or Postnuptial Agreement
For a prenuptial or postnuptial agreement to be enforceable it needs to be
- in writing
- signed by both parties
- voluntarily entered into by both parties with full knowledge of all information relevant to the agreement
If the basic requirements for a valid agreement are met, a prenuptial or postnuptial agreement will be presumed to be enforceable. Either party may challenge the enforceability of the agreement on the grounds of fairness and whether it was voluntarily entered into. Both parties must have had time to consult separate attorneys. Consulting an attorney not only helps you make sure you have considered all the issues, but it is also more likely a court will enforce an agreement where both parties have had the benefit of counsel before signing.
To some, it may seem counterintuitive to make an agreement about divorce in anticipation of or while still married. But the reality is that divorces happen and good planning can go a long way to make a difficult situation more manageable. The Manhattan prenuptial and postnuptial agreement lawyer at Randi L. Karmel, PLLC, helps our clients understand the benefits of marital agreements with open and honest communication. Contact us here to discuss your unique matrimonial issues or call our office at 212-755-0224.