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 as a prenup. If the agreement is made after marriage, but before the commencement of a divorce action, it is called a postnuptial agreement or a postnup. In either case, if done correctly, the prenuptial or postnuptial agreement will be a legally enforceable contract that can save the assets from claims made by the other spouse.

A couple will enter into a prenuptial agreement when one or both of them have an asset to protect.  The asset could be most anything, including a business, professional degree, real estate, stock, bond, bank account, patent, or copyright.  In the event of death, under New York law, a spouse is entitled to a certain percentage of the other spouse’s estate.  This cannot be changed simply by writing a will and saying that the spouse gets nothing.  However, in a prenuptial or postnuptial agreement, a spouse can waive rights to the other spouse’s estate in the event of death.

A prenuptial or postnuptial agreement is also useful when one of the parties has a large amount of debt.  The agreement can clearly state that the other spouse is not liable for the debts of the debtor spouse.  Prenuptial and postnuptial agreements are also useful when the couple already have children from other relationships and wish to make certain that assets are protected for those children in the event of separation, divorce or death.

Typically, a couple enters into a postnuptial 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, the prenuptial or postnuptial agreement must be meet the following criteria:

• Be in writing;
• Include full disclosure of assets and debts;
• Be fair when entered into;
• Have notarized signatures;
• Not be against public policy (for example, a party cannot agree to give up child support)

In addition to the above requirements, it is strongly recommended that each party be represented by an independent attorney of his or own selection.  If this is not done, the unrepresented spouse may later be successful in invalidating the agreement saying that he or she didn’t understand what he or she was agreeing to.

Our fee to prepare a standard prenuptial or postnuptial agreement is $750.  Our fee to review such an agreement is $500. Call us at (718) 625-0800 to schedule a free consultation.