What To Include In a Prenuptial or Postnuptial Agreement

Engaged couple signing prenuptial agreements paper on a desk

Prenuptial and postnuptial agreements are marital contracts that can clarify each spouse’s financial rights during the marriage and in the event of a divorce. Determining what to include in a prenuptial or postnuptial agreement takes the advice and guidance of an experienced family law attorney. That’s where Aiello & DiFalco LLP comes in.

We regularly help clients throughout Long Island and New York City negotiate and prepare prenuptial and postnuptial agreements. When you work with us, we will prepare an agreement that protects your assets and ensures that you have a solid financial plan if your marriage does not work out. Contact our office today to get started. 

About Prenuptial and Postnuptial Agreements

A common misconception is that marital agreements are only for the rich. But prenuptial and postnuptial agreements can help couples from all walks of life protect premarital assets, distinguish between separate and marital property, and avoid disputes if they divorce. Both parties must disclose all their assets (e.g. real estate, stocks, retirement accounts, and debts) for the agreement to be valid. A well-conceived agreement will cover the following matters.  

Premarital Assets

In addition to disclosing premarital assets, these documents should specify whether any separate property will become marital property, including appreciation of business interests, real estate, and other assets like investment accounts. A prenup or postnuptial agreement also allows the parties to treat property that may be marital as separate and determine the division of property in the event of a divorce.

Premarital Debts

If one spouse has debt going into the marriage, a marital agreement should clarify whether both parties are responsible for paying the debt or if it’s the sole responsibility of one spouse. Such debt might include student loans, personal loans, auto loans, credit card debts, and mortgages. 

Spousal Maintenance (Alimony)

In a New York divorce, spousal maintenance (alimony) may be awarded to the spouse who earns less. A prenup or postnuptial agreement can determine the amount of spousal maintenance. For example, the parties can agree to follow the statutory formula or reduce or increase the amount of alimony. Also, the agreement can waive spousal maintenance, unless the couple has been married for a long time (e.g. 10 years or more) or one spouse gave up their career to care for the children. 

Financial Responsibilities

A prenuptial or postnuptial agreement will specify how the parties manage household expenses, how they intend to approach saving and spending, and how much each party will contribute toward retirement. Clarifying financial obligations can minimize disputes that may lead to a marital breakup. 

Children from Previous Relationships

If you have children from a previous relationship, a prenup or prenuptial agreement should have a provision protecting their property rights if you divorce. A well-conceived agreement will also ensure they receive an inheritance you intended for them if you pass away as part of a comprehensive estate planning strategy. 

Business Earnings

The martial agreement should specify whether the profits from a business or professional practice are separate or marital property, especially if the earnings are significant. 

Retirement Accounts

Retirement accounts like 401(k)s, IRAs, and pension plans are considered marital property. However, a prenup or postnuptial agreement can designate retirement accounts as separate property or determine how the assets should be divided in a divorce. Notably, you must name your spouse the beneficiary of a 401(k) plan in the event of your death, and many pension plans include survivor benefits. 

What Not To Include In A Prenuptial or Postnuptial Agreement

There are limitations to what a prenup or postnuptial agreement can include, such as:

  • Child custody issues are resolved by agreement between the parties or the court after a divorce is initiated.
  • Child support is determined by a statutory formula based on the combined parental income and the number of children. 
  • Non-financial stipulations that delegate daily tasks and responsibilities of either party cannot be included in a marital agreement

Finally, each party must have their own attorney when drawing up a prenup or postnuptial agreement; otherwise, the court may deem the agreement invalid.

Contact Our Experienced Long Island Prenuptial Agreement Attorney

Whether you are planning to be or already married, a well-conceived prenuptial or postnuptial agreement will protect your financial future in the event of a divorce. By working with our experienced family law attorney, you can create an agreement that is fair, secures court approval, and protects your interests. Contact our office today to schedule a consultation.