Prenuptial and Postnuptial Agreements

If you and your partner are contemplating marriage and think a prenuptial agreement may be right for you, or if you and your spouse’s circumstances have changed and are considering a postnuptial agreement, contact Rudyuk Law Firm, P.C., today to discuss your options.

Prenuptial agreements are drawn up by marrying couples for many different reasons, but ultimately, they all want the same thing: Protection. Reassurance. Peace of mind. They want to have a plan in place in case things go wrong.

For couples preparing to marry, the prospect of divorce can seem inconceivable. Even thinking of it as a possibility can feel unsettling. In truth, there’s probably no way to fully prepare for the end of something you thought would last forever. But it’s important to remember that marriage isn’t just a romantic partnership – it’s also the union of two households that will form a legally binding economic partnership. And that kind of partnership benefits from preparation.

Open communication, disclosing personal details, exchanging financial information, and planning together for the future – this is all part of establishing and building a successful marriage. So, too, is protecting your future by planning ahead, such as by taking out an insurance policy, a contract that hedges against the risk of unpredictable financial loss. For some engaged couples, a prenuptial (or premarital) agreement may be an appropriate consideration for planning for the future and protecting themselves against uncertain loss. Such an agreement before marriage grants partners a better idea of what the likely outcomes would be if something unthinkable like divorce were to come about.

A prenuptial agreement can provide divorcing spouses greater certainty and a framework to help navigate an otherwise unpredictable and distressing situation. Prenuptial agreements are particularly helpful in a state like New York, where assets and debts are all divided equitably (and not necessarily equally) upon divorce.

The most widely known and understood purpose for entering into a prenuptial agreement is to protect the assets of an individual with more to lose than their soon-to-be spouse. Certainly, a prenuptial agreement does serve this function, perhaps most evidently when the net worth of one of the spouses is much higher than the other. High-net-worth divorces can be especially complicated, with unique challenges as well as the potential for considerable losses. A prenuptial agreement could make the divorce process faster, smoother, and less likely to be contested—and it will limit financial risk.

But prenuptial agreements aren’t just for the affluent, and they can serve the interests of both spouses in the event of divorce. They are useful for many kinds of couples for many reasons, and have many other benefits.

For example, a prenuptial agreement can help:

• To safeguard a home that has long been in the family
• To protect the personal savings or inheritance of children from a previous relationship
• To keep separate a business (such as a family business), professional practice, or intellectual property
• To keep premarital assets separate for both spouses, such as homes, retirement funds, or real estate investments
• To avoid expensive, time- and energy-consuming conflicts in the unlikely event of divorce by agreeing in advance how to resolve any issues that may arise during the process
• To protect against uncertain outcomes from equitable distribution and unpredictable courts
• To protect the value of an advanced degree or license
• To protect the lower-income spouse, who might actually receive less in the event of divorce under the usual laws
• To limit spousal support to only be awarded in the event a spouse would be destitute without it
• To provide support for children from a previous partnership who remain unadopted by the other spouse, in the event of divorce

This list is not exhaustive. A prenuptial agreement can serve multiple purposes and can be tailored for the individual needs of the couple.

When a couple divorces in New York, they can decide together how to divide their assets and debts. If they can agree on all the details, then their settlement agreement will be subject to approval by the court. If there are disputes that cannot be resolved, the court will intervene and distribute the marital property and debt equitably, in a division it deems fair, after evaluating a variety of different factors.

In New York, a prenuptial agreement may be challenged in a divorce and can be voided by the court if it deems the agreement invalid.

To ensure that a prenuptial agreement can be enforced in New York, it’s best to take certain measures when entering into the agreement:

• The agreement must be written, and executed by both partners with a third-party witness
• The agreement should be fair
• Both parties should have independent legal representation
• Both parties should provide full financial disclosure
• Both parties should enter the agreement of their own free will

New York courts recognize and enforce prenuptial agreements as legally binding contracts, but there are several ways a spouse can challenge the validity of an agreement, including by making the following claims:

• Agreement Procured Through Fraud – One of the spouses misled the other about their finances, such as by hiding assets or debts
• Agreement Procured Through Coercion, Undue Influence, or Duress – One of the spouses was pressured or forced to sign under duress (such as by the threat of abuse), or with undue influence from an imbalance of power (e.g., the spouse was under 18, or mentally incompetent)
• Unconscionable (Grossly Unfair) Agreement – The agreement favors one of the spouses and significantly disadvantages the other
• Uneven or Unfair Legal Representation – One of the spouses didn’t have an attorney while the other did, or the spouses didn’t have separate attorneys

To ensure that your agreement is more likely to be upheld in the event it’s challenged, it’s imperative that both you and your partner work with attorneys experienced in family law. While there are DIY templates that couples can turn to for cheap prenuptial agreements in New York, and generic legal services online advertising fast prenuptial agreements in New York for spouses-to-be with fast-approaching wedding dates, a do-it-yourself or one-size-fits-all approach to any legal document – especially a prenuptial agreement – can end up costing you significantly in the long run. If you’re not careful with your approach to a prenuptial agreement, and you and your spouse do end up divorcing, you may find yourself losing far more than just your marriage.

If a married couple doesn’t have a prenuptial agreement, it’s still possible to enter into an agreement that offers them the same protections of a premarital agreement. Big life changes may occur throughout the course of a marriage that might warrant a postnuptial agreement.

For example:

• Inheritance – If one of the spouses receives a large inheritance, they may want to ensure it’s not at risk of being considered marital property, or they may want to distribute the inheritance in a specific way not guaranteed by New York laws.
• New Business – If one of the spouses or both start a new business, they may want to clarify which portions of the business are marital property and which are separate, to avoid the potential complications of dividing a business in the event of divorce.
• Change in Career – If a spouse becomes a stay-at-home parent, they may want to ensure that they will be protected by spousal support in the event of divorce.
• Clarification of Marital and Separate Property and Debts – If one of the spouses came into the marriage with significant debt or assets, it may be necessary to clarify separate property to avoid the risk of it being declared marital.

A postnuptial agreement in New York is virtually the same as a prenuptial agreement, as they can cover the same ground. The only real difference is that a prenuptial agreement is entered into before the marriage and a postnuptial agreement is entered into after the couple is already married. Both agreements can be tailored to the specific needs of a couple.

The following matters may be addressed by either agreement:

• Categorizing Separate Property – Can specific what property will remain separate property
• Categorizing Marital Property – Can establish certain property as marital, even if it might otherwise be deemed separate property
• Spousal Support – Can establish maintenance for a spouse, as well as the kind of maintenance, in the event of divorce; can also waive a right to spousal support
• Child Support – Can establish support for unemancipated children from a previous relationship who were not adopted by the other spouse
• Premarital Debt – Can deem premarital debt of either spouse separate property to establish ownership of it and protect the other spouse in the event of divorce

Prenuptial and postnuptial agreements can address a few matters or many, depending on what is important to either of the partners, but there are some limitations as to what can be covered and still be enforceable in New York. Matters involving children from the marriage, such as child custody and visitation or child support, cannot be waived or contracted away through a postnuptial or prenuptial agreement in New York, as the court always prioritizes the best interests of the children over parents’ wishes.

Depending on a couple’s needs – how many topics they want to address or how detailed they want the agreement – and regardless of whether they’re still planning for their wedding or already married, there’s a marital agreement available to protect their financial interests. A qualified family law attorney can draft an agreement so that it meets their needs and addresses their concerns, as well as ensure that it meets legal requirements and stands the best chance at meeting any challenges to its validity down the road.

A prenuptial agreement is often a sensitive issue for couples on the verge of marriage, best broached with delicacy and care. Perhaps there’s no such thing as an easy prenuptial agreement in NY, but preparing for the unthinkable is never easy. It’s just pragmatic, an insurance policy against financial risk, or even ruin, if things go unpredictably wrong with the marriage. Prenuptial agreements have other positives, too. They can encourage communication between two partners on the verge of marriage, and can be used to take some of the pressure off, eliminating uncertainty about a major life change as you both prepare to enter into a legally binding union. A postnuptial agreement can offer peace of mind if you face changes in your post-marriage life that may warrant new financial protections for one or both of you.

If you believe that a prenuptial or postnuptial agreement may be right for you, contact us at Rudyuk Law Firm, P.C., today to see how our firm may be able to assist you. Ksenia Rudyuk, an experienced and compassionate family law attorney in New York City and principal of Rudyuk Law Firm, can help you determine if a marital agreement is the best option for you as well as the next steps.