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Under New York law, couples are permitted to enter into a contract setting forth the financial terms of their marriage. Spouses can entered into marital agreements before the wedding (a pre-nuptial agreement), or after the wedding (a post-nuptial agreement). A properly drafted and executed marital agreement will govern financial and estate rights instead of the laws governing equitable distribution, maintenance, and counsel fees. 

Among other things, pre-nuptial and post-nuptial agreements can provide certainty concerning:

  • What property will be considered separate property or marital property in the event of a divorce;
  • How family businesses will be treated in the event of a divorce;
  • How much each party will receive in distributive awards or cash payments in the event of a divorce;
  • Who will keep and occupy the family home following a divorce;
  • The waiver or specified payment of alimony or spousal maintenance in the event of divorce;
  • The waiver or specified payment of counsel fees in the event of a divorce;
  • The waiver or alteration of rights in each other estates.

However, as a general rule, New York law does not recognize provisions in pre-nuptial and post-nuptial agreements concerning grounds for divorce, custody, parental access, and child support.

Do I Need a Pre-nuptial or Post-Nuptial Agreement?

Not every married couple needs a pre-nuptial or post-nuptial agreement.  Any lawyer who advises otherwise should be viewed with great skepticism.  Without question, requesting a pre-nuptial agreement can be a sensitive topic and can result in resentment between spouses or engaged couples. 

Marital agreements, however, can provide significant benefits to both parties when utilized under the proper circumstances.  Foremost, pre-nuptial and post-nuptial agreements provide certainty of what will occur if a marriage ends in divorce or death.  A valid marital agreement can shorten the divorce process by reducing the discovery process and court proceedings.  It can also alleviate conflict in a divorce, as an agreement can specify how property will be divided and how much spousal support will be paid in advance.

Although prenuptial agreements have traditionally been used by wealthy individuals and celebrities, people with more modest means are increasingly entering into them.  Pre-nuptial and post-nuptial agreements are particularly useful for parties entered into second marriages who wish to preserve property acquired in a prior marriage.  Marital agreements can be used to ensure that children from a prior marriage are guaranteed an inheritance while establishing what the new spouse will receive in the event of death.  Marital agreements can also be used assign responsibility for debts in the event of divorce.

Enforceability of Pre-nuptial and Post-Nuptial Agreements

For a marital agreement to be enforceable, it must comply with several formalities: it must be in writing, it must be signed by both parties, and it must be acknowledged (notarized in a specialized manner).  The failure to comply with these formalities will render the pre-nuptial or post-nuptial agreement void and unenforceable.

If these basic requirements are met, New York courts will generally enforce the terms of a prenuptial or post-nuptial agreement.  But courts may invalidate a marital agreement under exigent circumstances, including:

  • Fraud: A court may set aside a pre-nuptial agreement that was obtained through fraudulent means, including a party hiding assets or debts.
  • Duress or Coercion: The court may also invalidate a pre-nuptial agreement signed under duress or coercion.  Notably, the threat that the other spouse may not carry through with the marriage does not constitute duress under New York law. 
  • Unconscionable: If the terms of the pre-nuptial agreement are grossly unfair to one party, the court can find that it is unconscionable and refuse to enforce it.

Given the intricacies of the law governing marital agreements in New York, you should seek the assistance of a lawyer before entering into a prenuptial or postnuptial agreement.  Indeed, it is advisable that both parties retain his or her own lawyer.  With years of experience, the Law Offices of Andrew T. Coyle is here to guide you through the negotiation and execution of marital agreements.

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