In this Article:
(click a link below to go right to that section):
- What is a Prenuptial Agreement?
- What Is a Postnuptial Agreement?
- What Can Prenups & Postnups Be Used For?
- Who Should Get a Prenup or Postnup?
- Is a Prenup or Postnup Better?
- Pros and Cons of Prenuptial and Postnuptial Agreements
- What Can Be Included in Prenups and Postnups?
- When to Get a Prenup or Postnup
- When Not To Get a Prenup or Postnup
- Frequently Asked Questions (FAQ) About Prenup and Postnuptial Agreements
- Contact an Experienced Long Island, NY Family Law Attorney for Help Preparing Your Prenup or Postnup
Prenuptial and Postnuptial Agreements
Getting married is both a joyous celebration and a legally binding commitment on Long Island, NY. While no one goes into a marriage thinking it may one day end in divorce, it’s important that you don’t lose sight of protecting your interests and rights in the excitement of planning your wedding and finally saying “I do.”
A prenuptial or postnuptial agreement can help make sure that your assets and rights are safeguarded in the unanticipated event of a divorce. While some couples still believe that signing a prenup is “unromantic,” the reality is that it’s simply wise financial planning. Here’s what you need to know about prenuptial or postnuptial agreements on Long Island, NY.
A prenuptial agreement, also called a prenup, is a legally binding contract signed by two individuals prior to their marriage. A prenuptial agreement generally outlines the property, assets, and debts of each person, and may also indicate what each spouse will receive if the marriage ends.
A postnuptial agreement is similar to a prenuptial agreement in that it generally addresses the same core issues, but is entered into after the couple has joined together in civil union or marriage. In the past, postnups were considered unenforceable but became a popular choice in the 1970s as states began to adopt no-fault divorce laws.
The only legal difference between a prenuptial and postnuptial agreement is when the couple enters into the contract. A key difference in how the agreements are drafted, however, is how counsel can be retained. Married couples can usually draft a postnuptial agreement together with the help of a single attorney, while drafting a valid prenuptial agreement requires each spouse to retain their own counsel.
Pre- and postnuptial agreements can be used to:
- Outline terms of spousal support and property division between spouses. This is the most common type of pre- and postnuptial agreement and is used to spell out how individual and shared assets and debts will be distributed in the event of a separation or divorce. This type of agreement includes both assets that each spouse brought into the marriage and shared property acquired during the marriage.
- Waive spousal rights when one passes away. A pre- or postnuptial agreement can also be used to establish guidelines for how the couple’s assets would be distributed in the event of the death of either spouse. A pre- or postnup used in this manner typically supersedes state laws or a will.
- Provide structure to a future separation agreement. A postnup can also be designed to function as a template for a future separation agreement. While child custody and support can be included in a postnuptial agreement, they cannot be included in a prenup. A postnuptial agreement created for this purpose will often reduce the time and expense it can take to move through the divorce process.
Many people view prenuptial agreements as a contract between wealthy people, couples with a large age gap between them, or as a jinx on their future marriage. However, as more and more people marry later in life when they are more established and have at least some assets, more couples are entering into these agreements than ever before. Since the 1970s, the number of prenuptial agreements has tripled. With the prevalence of divorce and the increasing frequency of remarriage, this growth rate makes sense.
Wealthier couples are prime candidates for prenuptial agreements, however, this only represents one small category of people who should consider protecting themselves before entering a marriage. Couples in which one or more parties have been previously divorced are also good candidates for a prenuptial agreement. Owners of their own business or couples with premarital assets that they want to protect should also consider a prenuptial agreement.
Although sometimes considered unromantic, prenuptial agreements are also gaining traction among Gen X and Millennials. Younger individuals are delaying marriage and pursuing careers. When marriage does occur, each partner often comes into the union with property and assets they want to protect. A prenuptial agreement is a smart financial choice that protects both spouses from losing assets or giving up their equal right to share in property acquired during the marriage.
Whether a prenup or postnup is the best choice largely depends on your individual circumstances; neither is clearly advantageous over the other. Review the pros and cons of these agreements to get an idea of which might be a good fit for you:
There are several advantages and potential disadvantages to consider before signing a prenuptial or postnuptial agreement, including:
Pros of Prenuptial and Postnuptial Agreements
- Entering into a prenup can alleviate the concern that either spouse is marrying for financial gain.
- Drafting a prenuptial agreement requires a couple to examine their finances, including assets, debts, and income, prior to entering into a legally binding marriage.
- A valid prenup can help your divorce go smoothly in the event it occurs, potentially requiring less time and cost to go through the process of dissolving your marriage.
- A prenup can protect the financial interests of children from a previous marriage.
- A postnup can be used to amend a prenup if the original agreement no longer suits a married couple’s needs, or it can provide protection in the event a prenup was never created.
- Couples who plan on divorcing can use a postnuptial agreement to simplify the terms of the divorce.
Cons of Prenuptial and Postnuptial Agreements
- Prenuptial agreements may be viewed as unromantic.
- They may cause one spouse to feel as though the other is not completely committed to the marriage.
- Requesting a prenuptial agreement may elicit an argument.
- Poorly drafted prenuptial agreements are often considered invalid and do not provide the protection they were designed to.
- Requesting a postnuptial agreement may make the other spouse feel like the marriage is on the decline.
- It’s often easier for a postnup to be found invalid than a prenup.
What you can and cannot include in a pre- or postnuptial agreement is generally dictated by New York state law. However, some of the most common provisions included in these types of agreements are:
- How assets and property are divided after separation or divorce. This often includes specifics about what will happen with the marital home, who gets to keep which vehicle(s), how liquid assets and investments are divided, and more.
- If one spouse will pay alimony. The details about the amount of spousal support to be paid, when it’s to be paid, and to whom will also be included.
- How debts accrued during the marriage will be divided. This includes the mortgage on the marital home, vehicle loans, credit card debt, medical debts, etc.
- How property and assets will be distributed in the event of one spouse’s death. The agreement may also specify alternative provisions if the divorce process had been started at the time of death.
- Who will get custody of minor children and if child support will be paid. This is for postnuptial agreements only, since child custody and support cannot be built into a prenup.
Contrary to outdated beliefs, entering into a pre- or postnuptial agreement does not mean that a couple plans to get a divorce at some point or is considering filing for a divorce. Pre- and postnups are often entered into because:
- A couple wants to clearly define what property each spouse is bringing into the marital union and their wishes for what will happen to it.
- One spouse makes significantly more money or has more assets than the other and they want to protect them; alternatively, the lesser-earning spouse may want to ensure they have access to financial support in the future.
- One spouse has children from a previous marriage and wants to protect their inheritance and ensure that assets would be passed on to the children in any event.
- A couple wants to know upfront what the terms of a divorce would be in the event that it were to happen, in addition to speeding up the process and reducing its overall cost.
- One spouse has stopped working to provide care for minor children or to attend school and the couple wants to ensure they will have access to financial resources if a separation or divorce were to occur.
- One spouse has received a large financial gift, such as lottery winnings, a civil suit settlement, or an inheritance.
- One spouse has significant debt and the other spouse wants to be protected from the responsibility of paying it back.
Although establishing a pre- or postnuptial agreement is usually in the best interests of both parties entering into a marriage, there may be rare cases where obtaining one would be disadvantageous. For example, you may not want to get a pre- or postnup if:
- There is a significant income gap and you’re the lesser earning spouse. A prenup may be used to limit your access to alimony after a divorce, which can prevent you from regaining your financial independence.
- You were not given enough time to evaluate the agreement. You should be offered enough time to review any legal agreement with your attorney and submit revision requests as necessary until the contract is satisfactory to both parties.
- You feel pressured or coerced into signing. One spouse may put undue pressure on the other to sign an unfair prenuptial or postnuptial agreement quickly before the other can realize that the agreement is heavily in favor of the proposing spouse.
- The agreement heavily favors your spouse. Or, it does not provide for your financial security after a separation, divorce, or death.
- New York state property distribution laws are more favorable for you. You can choose to default to state law rather than have a prenup or postnup.
- You and your partner have no plans to increase your wealth. You may not need an agreement if you don’t want to have children or otherwise add to your assets.
- You have fundamental philosophical or religious beliefs against pre- or postnuptial agreements. This is common for Christian and Catholic families in New York.
- You’re not ready to be fully transparent about your finances. In this case, you may want to consider delaying the legal commitment of marriage.
- You accumulated significant debt during your marriage that you believe your spouse should also be responsible for. You may be able to have the debt split between the two of you.
Will a prenuptial or postnuptial agreement change the outcome of equitable distribution?
Couples signing a prenuptial agreement should understand that their divorce may be governed by this document. So long as the contract was skillfully drafted and properly executed, they will no longer be subject to New York’s equitable distribution laws. Under this law, marital property is divided based upon what a Long Island, NY court may see as equitable, and may entitle a spouse to more or less marital property than that provided by a prenuptial agreement.
What makes a prenup or postnup invalid?
There are some situations upon which a prenuptial agreement may be invalidated. For example, if a person deliberately hides assets in order to induce a spouse into agreeing to a low level of support under a prenuptial agreement, a court may declare the agreement invalid. If a spouse was unduly pressured or coerced into signing the agreement, it may also be invalid. For example, if a prenuptial agreement is presented to a spouse on the day before the wedding, a court might determine that the agreement was signed under duress and is therefore invalid.
On Long Island, NY, courts look to procedural and substantive fairness when determining the enforceability of prenuptial agreements. Procedural fairness ensures that there is full financial disclosure and both parties have independent legal counsel.
Substantive fairness ensures that the agreement was not reached through fraud or undue influence, which courts have determined does not include the threat to call off the marriage. It also ensures agreements aren’t procured by duress, overreaching, asset concealment, or unconscionability.
Can a prenup or postnup include child custody or visitation?
Insofar as a prenuptial agreement can govern child custody and visitation, that portion of the agreement is valid only if the couple already had children at the time that the agreement was signed. Otherwise, it’s not valid. Even if the couple had children prior to marriage, a judge will make the final decisions regarding custody and support to ensure that the best interests of the child are protected.
Can a prenup protect my inheritance from my spouse?
A prenuptial agreement may also provide for a spouse’s right to inheritance upon the death of her spouse. Under New York state law, if a spouse dies without a prenuptial agreement governing the inheritance, the surviving spouse will be entitled to anywhere between $50,000 up to one half of the decedent’s estate, regardless of what the decedent spouse’s will says. This is known as the elective share.
However, if a valid prenuptial agreement has been signed, the agreement will preempt the elective share law, and the surviving spouse will be entitled to whatever terms to which she agreed prior to the marriage. In many cases, a less wealthy spouse will receive less under a prenuptial agreement than they would under the New York state laws governing divorce and inheritance.
Contact an Experienced Long Island, NY Family Law Attorney for Help Preparing Your Prenup or Postnup
If you’re getting married or were recently wed, it’s critical that you consult with an experienced family lawyer who can advise you on how to legally protect your rights and interests in your new marriage.
While you don’t expect to get a divorce, having the security of a legally binding agreement that prevents you from being left with too little after dissolving your marriage is important. Contact Hornberger Verbitsky, P.C. today to schedule your free consultation at 631-923-1910 or fill out the short form on this page and we’ll get back to you as soon as possible.
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