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Prenuptial and Postnuptial Agreements in New York

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Prenuptial and postnuptial agreements are made in order to make decisions regarding property and finances between prospective people. These agreements are enforced by law and help to avoid uncertainty if there was ever to be a divorce or death of a spouse. Agreements like these can be beneficial if one or both spouses have children from other relationships and would like to protect assets for their children in the future.

In order for either of these agreements to be valid they must:

Be written
Disclose all assets and debts of both parties
Be fair when entered into
Have signatures that are notarized
Follow public policy

Prenups are not solely for people with a lot of money, there are many reasons to draft this agreement, including:

To spell out property division to children from other relationships
To clarify financial rights and responsibilities during the marriage
To avoid arguments if you end up getting divorced
To protect yourself from debts of the other spouse

If you do not obtain a prenuptial agreement, state law will determine property division and alimony decisions if you and your spouse divorce. The process of property division in divorce can be time-consuming and costly. Drafting a prenup can save you the hassle of this process altogether. If anything, this agreement can provide you with peace of mind that there are arrangements in place just in case something was to happen between you and your spouse.

New York Postnuptial Agreements

This type of agreement is also termed "postnup" and this agreement is formed while spouses are married. Spouses oftentimes realize that they should have made a prenup and end up drafting the agreement during their marriage. A postnup is usually used if couples want to make arrangements for divorce or in case one spouse was to pass away.

This agreement can create provisions for any of the following issues that could come about:

Asset division
Child support
Alimony/ spousal support
Child custody
Visitation
Property division
Debt division

Prenups and postnups often carry negative connotations because people think to create this agreement you are doubting your marriage. In actuality, many people make these agreements to avoid uncertainty if one spouse dies. In order to avoid a long probate process, these agreements can make arrangements ahead of time. Prenups and postnups can be used if a couple foresees a divorce and wants to settle divorce issues ahead of time, but that is not the sole reason to draft an agreement.

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Have Questions?

We Have Answers!

Do I Need to Live in New York to File for Divorce in New York?
Before you can obtain a divorce in New York State, you must meet one of the following residency requirements:
- The parties resided in New York as husband and wife, and either party lived in New York for one year or more prior to filing.
- The cause of action occurred in New York, and either party lived in New York for one year or more prior to filing.
- The cause of action occurred in New York, and both parties live in New York at the time of filing.
- Either party has lived in New York for two years or more prior to filing.
The court cannot maintain jurisdiction over a divorce action unless one of these five residency requirements exists. Any challenge to residency must be raised during the divorce proceedings, and will not be entertained post judgment.
Can My Spouse Transfer Property or Remove My Name From Insurance Policies During Our Divorce Proceedings?

In September 2009, the New York State legislature enacted new Automatic Restraining Orders which prevent parties from incurring unreasonable debt, spending unreasonable amounts of money, with the exception of the payment of regular bills and reasonable legal fees, from transferring property, removing or terminating insurances, etc. during the divorce. These orders are automatically binding upon the plaintiff, and become binding upon the defendant, once he or she is served with the documents initiating the divorce.
Can I Start a Divorce Against My Spouse When I Reside in New York, but My Spouse Does Not Reside in the Country?

The short answer to this question is, generally, yes, however, this is a complicated issue and it is important for you to speak with an experienced attorney about the issues of service of process on your spouse pursuant to international law. When the country in which your spouse is to be served is a signatory to the Hague Service Convention, the documents to be served will need to be translated into the official language of that country and presented to a Central Authority authorized to effectuate service in that country. This is often a lengthy process, which includes the translation of legal documents, shipping of those documents abroad, and locating your spouse. Attorney Dow has experience organizing the service of international process and welcomes the opportunity to help you serve your internationally located spouse.