Two words that can easily trigger unscalable walls of defense in a relationship. We've all heard of the classic prenuptial, a legal protection of assets for a person about to enter into a marriage. What you may not know about is it's lesser known sibling, the postnuptial agreement. Like it's predecessor, a postnuptial is not the easiest topic to discuss amongst couples. Although these marital contracts are more times than naught associated with negative intentions, they can also be initiated in neutral manners. For the purpose of this blog we will cover the basics of both documents as well as give more insight to postnuptial agreements.
The Prenuptial Agreement
What some may call a marital catch-22, a prenup is a written legal contract between two soon-to-be spouses that resolve problems that would otherwise be decided by a judge during a divorce trial or death. Prenups include a variety of topics including the distribution of property, assets, debt, alimony; including the amount and duration, entitlement to benefits, and any other subject matter that the couple wishes to include. A prenuptial agreement in New York will cover issues concerning child care, education, and financial support; however, a judge will make the final decision based on the best interest of the child.
In their most basic form, prenups are designed to protect the assets either spouse is bringing into a marriage. For example, any inheritances, family fortunes, real estate, or businesses. Despite some popular belief, not everyone needs to get a prenuptial agreement; similarly, not everyone is open to getting one. If you're a new couple just starting your careers, chances are you don't have any significant assets being brought into the marriage. Anton Abramowitz, president of the American Academy of Matrimonial Lawyers, says if a spouse is making under $100,000 a year then there probably isn't a necessity for a prenup and that they're seen more when a spouse has assets over $200,000.
A prenuptial agreement is only valid if:
- The contract is in writing.
- Signed by both spouses in front of a notary before the wedding.
- The contract is fair and reasonable. Depending on the case, a prenup can be ruled invalid if:
- It is proven that the agreement promoted a divorce.
- It was written or signed with the intention of getting a divorce.
- A spouse was pressured, forced, or tricked into signing the document.
- The document is in complete favor of one spouse.
- There are undisclosed assets. In New York spouses aren't required to disclose their assets, but if they do, any falsified information will void the agreement.
Understanding the negative air around a prenup comes from seeing the agreement as a safety net for what if?, To many, a prenup says, "I love you, but I don't know if I trust you." Obnoxious? Maybe to some; but to individuals with large assets, understandable. A prenuptial can be as simple as each spouse keeping what they brought into the marriage and splitting everything acquired during the marriage evenly.
The Postnuptial Agreement
Postnuptial agreements also dictate the division of assets and liabilities concerning alimony and marital debts during a divorce or death of a spouse. The biggest difference between the two is simply the time in which the couple signs the agreement. A postnuptial agreement can be prompted for a number of reasons and don't necessarily have to mean there's trouble in the marriage. One common reason for a postnuptial is to update an already existing prenup; and with the rise of prenups, more and more postnuptial contracts are being made later in the marriage. Other reasons for a postnuptial are:
- Financial protection for a spouse that may be a stay-at-home parent and has no individual source of income.
- A spouse's unexpected property or asset inheritance.
- Financial protection against a spouse's incurred debts.
- If a couple decides to open a business together and wants to avoid future disputes over the business.
In more unfortunate circumstances, postnups are a direct cause of infidelity in the marriage. The agreement is used as a "condition" put in place by the offended spouse to not forfeit their rights in a divorce if they choose to forgive their spouse. The offending spouse may also suggest a postnuptial that offers compensation to show they are willing to work through issues in the marriage.
The validity of postnuptial agreements fall under the same demands as a prenuptial agreement. Some courts, like in New York, are more strict on postnups than prenups because of their nature of essentially being a contract in which a spouse waives rights they would otherwise be entitled to under state law. A marriage is a legal bond between two individuals that vow to care for and support one another. Prenups are looked at more impartially because they are made prior to a marriage where the couple has not yet made legal vows to each other. Because of this, it is important that both spouses utilize the help from experienced family attorneys to ensure the contract is done thoroughly and does not unjustly favor one side or contain conflicting terms.Whether it's a prenuptial or a postnuptial, discussion of either agreement can be a very sensitive topic within a relationship. Although they are both associated with negative feelings it is possible to accomplish either in a neutral manner. Having an experienced family attorney is the only way to successfully execute this complex and potentially lengthy process. The attorneys at Hall Ricketts Schuller & Gurbacki put your best interests first. With experience spanning over 80 years, there's not a more trustworthy firm in Western New York. Contact Us online or call today.