Prenuptial & Postnuptial Agreements

Prenuptial Agreements

A prenuptial agreement, sometimes referred to as an antenuptial agreement or pre-marital agreement, is a contract between two parties before marriage.  It is generally valid and enforceable given the strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements.  There must be full disclosure of all assets, consent by both parties, and an absence of duress in order for the prenup to be enforceable.  To that end, prenups have become increasingly popular among people of all wealth classifications.  

Prenuptial agreements addressing the ownership, division or distribution of property are often read in conjunction with DRL 236(B), which states that unless the parties agree otherwise in a validly executed prenuptial agreement under DRL 236(B)(3) that upon a divorce, marital property must be distributed equitably between the parties.  Conversely, separate property shall remain separate. 

What exactly is considered “separate property”?  It is defined to include “property described as separate property by written agreement of the parties.  Further, this may include a “provision for the ownership, division or distribution of separate and marital property” and is valid and enforceable if it “is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.”

As with all contracts, prenuptial agreements are construed in accord with the parties’ intent, which can be gleaned from what is expressed in their writing.  Naturally, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.

Finally, a prenuptial agreement is unique in that it permits the soon-to-be-couple to dictate their financial freedoms during and after the marriage, including equitable division, spousal support payments, indemnification of debts and lawyer fees.  

Postnuptial Agreements

If and when a prenup falls apart before the marriage, and the parties ran out of time to sign one, the solution can come in the form of a postnuptial agreement.  The key difference is that a postnup is entered into after the parties’ marriage.  Thus, a postnup agreement made by the parties during the marriage is valid and enforceable.  Much like a prenuptial agreement, it is a binding contract between a husband and wife regarding the division of their assets, property distribution, waiver in rights of election, and the allocation of spousal support and maintenance upon a divorce.  

The postnuptial agreement as a whole must be unambiguous in its purpose and convey the parties’ intent to mutually waive their rights in the agreed upon marital property.  A postnuptial agreement cannot be entered into through fraud or duress, and it must not contain unconscionable terms.  Postnuptial agreements allow the respective parties to dictate their terms and conditions if things do not work out between them, and one person files for divorce in Supreme Court.

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