The Laywer’s Desk: By Jerry Kugelmas, Esq.
Prenuptial Agreements are agreements made before a marriage that allows the parties to determine, for themselves, their rights and responsibilities in the event they divorce and to address certain estate rights. It allows the parties to take control of their own destinies rather than leave it to chance.
A Prenuptial Agreement can address the ownership and distribution of assets, the allocation of liabilities, support, maintenance (spousal support formerly known as “alimony”), and the care and custody of children if there is a future divorce or separation. As just one example, it allows the parties to designate and protect assets they had before the marriage and to decide for themselves how future appreciation of such assets is handled.
A Prenuptial Agreement can address estate rights such as making a provision in a will or to waive the rights that a spouse would otherwise have in the estate of their spouse. This is very useful in a second marriage where one or both of the spouses have children from prior relationships who they want to provide for.
A Prenuptial Agreement does not have to address all the issues. It allows the parties to pick and choose as they please to address and determine the rights that are important to them and the matters they want to address in advance.
New York law and public policy favors the use of Prenuptial Agreements. New York law recognizes the benefits of people resolving potential problems by agreement instead of through contested court proceedings.
Most important, a Prenuptial Agreement benefits the people who use them. It allows people to plan their future and have financial certainty and stability. It avoids contentious, costly and unpredictable legal disputes if there is a future divorce. It allows people to keep control of their finances rather than leaving important financial issues to judges and lawyers in the environment of an emotionally charged and prolonged contested divorce case.
Postnuptial Agreements are similar to Prenuptial Agreements only these are done during the marriage. A Postnuptial Agreement can address all the matters as a Prenuptial Agreement. Postnuptial Agreements are used for many different reasons such as when the married couple want to fix their rights in case of divorce, to address estate issues that were not considered before, and to resolve other financial or marital rights that may arise or come to light during the marriage. Like Prenuptial Agreements, it provides certainty and control and allows the parties to avoid costly and contentious legal proceedings.
Prenuptial Agreements and Postnuptial Agreements are important legal instruments that have important future consequences. They should be carefully thought out and planned to address the couple’s particular circumstances. They must be done properly. To be valid, they must comply with rules and formalities mandated by New York law.
There are guidelines to determine if a Prenuptial Agreement is fair. Under certain circumstances, these Agreements can be vacated or cancelled by the Courts. It is important to have these Agreements done by an experienced Domestic Relations attorney.
The usual cautionary note – this article is for general information. It is not a substitute for sound legal advice. Readers should not rely on this article or take action based on it. Everyone’s circumstances are different and the law is far more complex than what can go into these articles. For those who need it, be sure to get legal advice from an experienced attorney.
This article is written by a member of the Oxman Law Group, PLLC (www.oxmanlaw.com).
Any comments or inquiries are welcome and can be directed to Marc Oxman at 914-422-3900 or moxman@oxmanlaw.com
