Attitudes toward prenuptial and postnuptial agreements have changed dramatically in recent years. Contrary to previous misconceptions, these agreements are not just for the wealthy. Today, New Yorkers from all walks of life use prenups or postnups as a tool to protect their financial future if their marriage should end in divorce.
While having an attorney prepare a prenuptial or postnuptial agreement is not legally required, not having one could be problematic. New York courts closely scrutinize marital agreements, especially if the parties prepared the agreement without proper legal representation. Ultimately, working with an experienced family law attorney will help to support the validity of your prenup.
That’s where Aiello & DiFalco LLP comes in. We have extensive experience preparing and reviewing prenuptial and post-nuptial agreements. Trust us to ensure your agreement is prepared correctly and deemed enforceable by the court. Contact our office today for a consultation.
Do Prenups or Postnups Require Attorneys?
Prenuptial and postnuptial agreements, also known as prenups and postnups, are written contracts between prospective spouses who mutually agree on how specific issues, such as property division and alimony, will be determined if their marriage ends in divorce. This agreement is essentially a planning document that provides for the type of economic partnership the couple will have and what happens with the assets and other financial issues in the event the marriage is dissolved by divorce or ends in the death of a party.
As mentioned above, having an attorney for a prenup or postnup is not mandatory under New York law; however, each party must have the opportunity to obtain legal representation. But a skilled family law attorney can help to ensure the agreement passes muster with the court. Notably, a single attorney cannot represent both parties as this might pose a conflict of interest, but in certain circumstances a lawyer can mediate a prenuptial agreement as a neutral between two parties.
In short, even though you’re not required to have an attorney prepare and execute a prenuptial or post-nuptial agreement, doing so is a wise choice.
Legal Requirements for Prenuptial and Postnuptial Agreements
New York has requirements for prenuptial and postnuptial agreements, such as:
- Marital agreements must be written and signed by each party
- Both parties must make complete financial disclosures
- Either party must enter the agreement free of coercion or duress
Ultimately, the parties should have different attorneys and negotiate and execute a prenuptial or post-nuptial agreement.
What Is Included In a Prenup or Postnuptial Agreement?
Prenuptial and postnuptial agreements should cover property rights, personal rights, and spousal maintenance (alimony), and clarify the financial rights and obligations of each party. More specifically, marital agreements can include:
- Division of assets and debts in divorce
- The right to sell, buy or control property in the marriage
- Whether one spouse will pay the other spousal maintenance after a separation or divorce
- The amount and duration of that alimony
- Whether retirement accounts are divided in a divorce or remain separate
- The requirement to obtain life insurance or distribution of any life insurance proceeds
In addition, the parties should draft wills to carry out the terms of a prenuptial or post-nuptial agreement.
Sometimes a prenuptial agreement is focused on one particular issue or asset, for example, a party’s premarital home that has been passed down from a family member, or a business interest which is owned by multiple family members. These agreements do not need to deal with every issue or asset if there are only certain property rights that are concerning to a party.
What Not To Include:
A prenuptial or post-nuptial agreement cannot address several aspects of divorce, such as:
- Child custody and child support arrangements for children born into the marriage
- Non-financial conditions of the marriage, including adultery clauses
- Language encouraging divorce, for instance, if one spouse fails to do something, the other can initiate a divorce
If you have any questions about drafting or executing a prenuptial or postnuptial agreement, you should work with an experienced family law attorney to ensure that yours will be enforceable.
What Else You Should Know About Prenuptial and Postnuptial Agreements
In addition to the above-referenced legal requirements, other factors to consider include:
Timing
Both parties must demonstrate that they have had adequate time to consult with their own attorney and thoroughly understand the terms and effects of the agreement. In particular, parties entering a prenup should execute the agreement long before the wedding date.
The Terms Must be Fair
Prenuptial and postnuptial agreements must be fair. A court could rule an agreement unenforceable if it finds that one party will be left destitute or reliant on state financial assistance. Suppose one spouse is unemployed or leaves a career to raise children while the other has an advanced degree and earns a significant income. In that situation, a judge may refuse to enforce a prenup that leaves the first spouse with little or no spousal support as it could be unconscionable.
The Agreement Must be Voluntary
For a prenuptial or postnuptial agreement to be legally enforceable, the agreement must not be signed under duress or coercion such as:
- One spouse threatening not to marry unless the other agrees to a prenup
- Singing a prenuptial agreement right before the wedding ceremony
- One spouse threatens to divorce if the other refuses to sign a post-nuptial agreement
A marital agreement is more likely to be considered voluntary when each party has legal representation.
Contact An Experienced Prenuptial/Post-Nuptial Agreement Attorney
Prenups and post-nuptial agreements are complex. The best way to protect your rights and interests is to have an experienced family law attorney negotiate and prepare your agreement. Trust Aiello & DiFalco to guide you through the process and prepare a marital agreement that is fair, reasonable, and enforceable. Contact our office today to get started.