Couples who intend to get married may enter into a Pre-nuptial agreement. The purpose of most pre-nuptial agreements is to clarify issues involving the division of property and spousal maintenance (alimony) if the parties decide to get divorced or legally separated. Parties who are already married can enter into post-nuptial agreements. Post-nuptial agreements are basically the same as pre-nuptial agreements except that the parties are already married.
What Pre-Nuptial and Post-Nuptial Agreements Cover
These agreements usually deal with subjects involving the ownership of the marital residence, distribution of the parties’ property upon death, financial responsibility of the parties to each other, and the state laws under which the agreement will be interpreted.
Some pre-nuptial agreements include a ”sunset clause” which provides that if the parties are married for a certain number of years, the pre-nuptial agreement will expire or cease to be valid.
Restrictions on Pre-Nuptial and Post-Nuptial Agreements
New York State provides for certain restrictions with regard to which provisions may be included in a pre-nuptial agreement. Pre-nuptial agreements cannot deal with who would receive custody of a child in the event of a divorce. The agreements also cannot set up visitation schedules in the event the parties become divorced.
Pre-nuptial agreements cannot deal with the issue of child support. Issues such as child support are governed by the Child Support Standards Act which is a federal statute enforced in all 50 states.
Who Gets a Pre-Nuptial Agreement?
There are certain misconceptions that exist concerning pre-nuptial agreements. To start with, they are not only for rich people. Due to the high legal fees involved in divorce proceedings, it is important especially in second marriages or where the parties have unequal assets at the start of the marriage to deal with these issues.
Pre-Nuptial Agreements as a Estate Planning Tool
Pre-nuptial agreements can also be appropriate as an estate planning tool. If one party has an estate plan with regard to his or her assets, a pre-nuptial agreement is a must to prevent the other party to the relationship from setting aside the estate plan.
Pre-nuptial agreements are not simple. There are important requirements and restrictions concerning these agreements. The agreement is only tested in the event of the death, separation or divorce of the parties. There are very specific requirements under New York State law as to what must be in a pre-nuptial agreement.
Should you have any questions concerning pre-nuptial agreements contact our law office. Our attorneys are adept at helping our clients deal with the complexity of pre-nuptial and post-nuptial agreements.