An agreement made prior to marriage concerning how property and financial issues will be resolved in the event of separation, divorce or death is called a prenuptial agreement or simply a prenup. If the agreement is made after the marriage has taken place, but before the commencement of a divorce action, it is called a post-nuptial agreement or a postnup. In either case, if done correctly, the prenuptial or post-nuptial agreement will be legally enforceable and can save assets from claims made by the other spouse.
A couple may enter into a prenuptial or post-nuptial agreement when one or both of them have at least one asset to protect. The asset could be most anything, such as a business, a professional degree, real estate, a stock, a bond, a bank account, a patent, or a copyright. In the event of death, under New York law, the surviving spouse is entitled to a certain percentage of the deceased spouse’s estate. This cannot be changed simply by writing a will that provides that the spouse gets nothing. However, in a prenuptial or post-nuptial agreement, a spouse can waive his or her rights to the other spouse’s estate in the event of death.
Prenuptial and post-nuptial agreements are also useful when the couple already have children from other relationships and wish to ensure that some or all assets are protected for those children in the event of separation, divorce or death.
Typically, a couple enters into a post-nuptial agreement either when they realize that they should have entered into a prenuptial agreement or they anticipate that the marriage may end in divorce and wish to make an agreement as to the division of assets in that event.
To be valid and enforceable, every prenuptial or post-nuptial agreement must meet the following criteria:
- Be in writing;
- Fully disclose the assets and debts of each party;
- Be fair when entered into;
- Signatures must be properly notarized; and
- Not be against public policy (for example, a party cannot agree to give up child support).
In addition to these requirements, it is strongly recommended that each party be represented by an independent attorney of his or her own selection. If this is not done, the unrepresented spouse may later be able to invalidate the agreement on the basis that he or she did not understand what he or she was agreeing to or was coerced into signing
Our fee to prepare a simple prenuptial or post-nuptial agreement is typically between $750 and $1,500. Our fee to review such an agreement is typically between $500 and $1,250. The fee will depend on how complicated the prenuptial or post-nuptial agreement is and how much time we spend on the matter. We offer free consultations. Call us at (718) 625-0800.