Home | Prenuptial and Postnuptial Agreements

A prenuptial agreement is a private agreement between two parties who are intending to marry that sets forth the terms of the marriage and distribution of assets and/or support requirements in the event of the parties’ divorce or death.

A prenuptial agreement allows the parties to avoid the risk of a major loss of assets, income, or a family business in the event of a divorce. In New York, a judge usually divides property in a manner that he or she considers equitable such that the division could be fifty-fifty or something else. A prenuptial agreement ensures that the parties’ economic rights are determined by the agreement rather than by the usual rules of law that a court would apply on divorce.

A prenuptial agreement can also ensure that a majority of assets or personal belongings are passed on to the children or grandchildren rather than a current spouse in the event of death. While courts normally follow the instructions of a will, a surviving spouse is usually entitled to $50,000 to one-half of the estate pursuant to statutory law regardless of what a will says. With a prenuptial agreement, that agreement will supersede statutory law.

In addition to the high rate of divorce, there are several good reasons to consider getting a prenuptial agreement. You should consider getting a prenuptial agreement, for example, if you have substantial assets, own a business, real estate, expect to receive an inheritance, have children from a prior marriage, or are pursuing a degree or license. A prenuptial agreement may also ensure that you receive a fixed amount of compensation should your spouse decide to divorce you or protect you against being liable for a spouse’s debts coming into the marriage.

Prenuptial agreements must be drafted properly to be enforceable. The laws governing the validity of premarital agreements vary from state to state but generally, they must be in writing and signed by both parties. Additionally, certain formalities and precautions should be taken to ensure that the other party will not be able to set this agreement aside later when you seek to enforce it. In this respect, in order to be valid, a prenuptial agreement must be free of fraud or duress. A court might declare that the agreement is invalid on the basis of fraud if one person deliberately misstates his or her financial condition. Similarly, if one person exerts excessive emotional pressure on the other to sign the agreement, a court also might declare the agreement to be invalid because of duress. Using lawyers is a good idea in order to help make sure the agreement is drafted and executed properly.

Postnuptial agreements are similar to prenuptial agreements except that a postnuptial agreement is entered into after the marriage ceremony.