Prenuptial agreements
A prenuptial agreement is signed before the wedding and controls how property is treated during the marriage and in the event of a divorce or death. It can address separate vs. marital property classification, spousal maintenance waivers or caps, and the treatment of premarital businesses, trusts, and inheritances.
Prenups have gotten markedly more common in the last decade, particularly for second marriages, marriages where one or both parties bring significant separate property, and marriages where one party owns or expects to inherit a business.
A New York prenup that follows the procedural and substantive requirements is enforceable. We draft to those standards.
Postnuptial agreements
A postnuptial agreement is the same kind of instrument as a prenuptial agreement, but signed after the wedding. The reasons range widely: a couple working through a difficult period and trying to clarify their financial relationship; a spouse who is about to leave a job or take on financial risk; a family member who has conditioned an inheritance or business interest on a postnup being in place.
Postnups face stricter judicial scrutiny than prenups in New York, because the parties already owe each other fiduciary duties as spouses. We draft accordingly: clean procedure, full disclosure, independent counsel for both sides.
Separation agreements
A separation agreement is the contract that settles the financial and custody terms of a marriage that is ending. In many New York divorces the separation agreement is signed first, the parties live separately for at least a year, and then the divorce is converted on consent.
A well-drafted separation agreement is the working document the parties live by for years. It controls support, custody, parenting time, equitable distribution, and post-divorce financial obligations.
What each agreement covers
Prenuptial and postnuptial agreements are similar in substance. Separation agreements are different in kind. The comparison:
- Classification of separate vs. marital property
- Treatment of inheritances and gifts
- Premarital businesses and professional practices
- Spousal maintenance terms in the event of divorce
- Sometimes estate planning provisions
- Cannot bind future child support or custody
- Custody and parenting time
- Child support and educational expenses
- Spousal maintenance amount and duration
- Equitable distribution of the actual marital estate
- Allocation of debts and obligations
- Insurance, retirement, and tax provisions
Why they hold up
The procedural requirements for a valid New York marital agreement:
- Written, signed by both parties, and acknowledged with the same formality as a deed
- Full and fair disclosure of each party’s assets and income
- No fraud, duress, or undue influence
- Each party represented by independent counsel (strongly recommended; effectively required in postnups)
- Reasonable time to review and negotiate before signing
- Substantively fair at the time of signing, and not unconscionable in operation at the time of enforcement
Questions clients ask first
- Is a prenup romantic?
- It is a financial planning document. Most couples who sign one report that the conversations the process required strengthened the relationship rather than weakened it. The alternative, addressing the same questions in the middle of a divorce, is much harder.
- How long before the wedding should a prenup be signed?
- Sign as far in advance as you can. Two to three months before the wedding is a reasonable target. A prenup signed the day before the wedding is much more vulnerable to a duress challenge than one signed three months earlier.
- Can a prenup control child custody or child support?
- No. Child support and custody are decided based on the best interests of the child at the time, not in advance. A prenup can address adult financial issues only.
- What is the difference between separation and divorce?
- Separation is the status of living apart, often under a separation agreement. Divorce is the legal end of the marriage. A separation agreement can be the contract that later supports a divorce on consent, or it can stand alone if the couple does not divorce.
- Do I need a lawyer if my spouse and I are agreed?
- Yes, and ideally two: one for each spouse. Independent counsel is the strongest procedural safeguard for the agreement. A spouse without counsel can later claim they did not understand what they signed.
- Can a postnup be enforced?
- Yes, where the procedural and substantive requirements are met. New York courts scrutinize postnups more strictly than prenups because the parties already owe fiduciary duties as spouses, but properly drafted postnups are routinely enforced.