Pre-Nuptial And Post-Nuptial Agreements
Pre-Nuptial agreements have gotten a bad rap.
Many engaged couples recoil at the idea of a pre-nuptial agreement. They fear it will signal distrust. They just don’t want to risk rocking the boat.
This reaction is understandable yet, in fact, many believe negotiating a pre-nup can be a positive experience and make the future marriage stronger.
A prenuptial agreement is a contract between you and your future spouse that is entered into before marriage. In that contract, a prenuptial agreement, you and your spouse disclose to each other all the money and property you each own, and how you will divide that money and property in the event of divorce or the death of one or both of you. You can also deal with how you will share household expenses and any other questions that might come up about your marriage.
If you don’t have a pre-nup, New York law will decide how property is divided on divorce or death, spousal maintenance (alimony) and eventual child support. If you want to vary the general rule, that’s where a pre-nup comes in. A valid pre-nuptial agreement can take the control over your property and assets away from the state and place it in the hands of you and your spouse.
To be valid, each party should have their own attorney, there should be full and fair disclosure of assets by both parties, neither party should be coercing the other into entering into the agreement and the agreement overall needs to be fairl and equitable. The agreement needs to be executed and acknowledged with the full formality required for a property deed to be recorded.
A Prenuptial Agreement can address many different issues, including:
Separate vs. Marital Property: Any property and assets you own before marriage are considered “separate” property. Any property and assets you acquire, such as real estate, a business, are generally considered “marital” property subject to division on divorce. There are exceptions and nuances to this rule. For example, separate property can change into marital property if it is commingled, or mixed with, marital property.
So, for example, you might want to identify property which is yours and which you want to keep, even though it might get mixed with marital property.
Your spouse might have debts coming into the marriage and you might want to make clear those debts are your spouse’s responsibility.
If you own property, you might want to make clear that the property and any appreciation of that property belongs to you.
Children from Prior Marriages:
If you bring minor children to a marriage, and your spouse does not adopt them, a prenuptial agreement can help make sure the children are provided for if you and your spouse divorce.
A pre-nup can establish maintenance for you or your spouse during the marriage, particularly if one of you is giving up a career to take care of the children. A pre-nup can establish in advance how much maintenance will be paid to one of the parties or if it will be paid at all.
Also a prenuptial agreement can establish what kind of support you or your spouse will pay to the other spouse during or after a divorce, or establish that there will be no support if you later divorce.
A pre-nup can address the economics of the future marriage. Will you have separate finances, joint finances or a combination of the two? Who will pay for what? What are your expectations as to savings and retirement?
A post-nup is really the same thing as a pre-nup, except it is entered into during the marriage as opposed to before the marriage.