Pre Nups - Post Nups & Other Marital Agreements 

There are four basic types of matrimonial agreements you might enter in New York. All four may contain similar terms, however, the legal effect of each can be very different since they are entered into at different times in the relationship.

You should not enter into any marital agreement lightly and never without the advice of an attorney who is fully familiar with your particular situation and the facts and circumstances surrounding your relationship with the other party. Whether you are the party with all the assets or not, your rights will be affected by these agreements and it is never wise to enter into one without fully understanding what each and every provision means and what options are available to deal with each issue raised in each agreement.

All of these agreements must be entered into freely, voluntarily and with knowledge and understanding. They cannot be based on fraud or duress and must not overreach so as to "shock the conscience" of a Court. It is highly recommended the both parties exchange a financial disclosure statement referred to as A Statement of Net Worth which is made under oath, so as to make a truly informed decision on whether the provisions contained in the proposed agreement are fair.

A pre-nuptial agreement is one that is negotiated, prepared and executed before a marriae. Each party should have INDEPENDENT counsel of their own choosing to negotiate the provisions, review the final version, explain its meaning and answer all questions before signing.

It is best to enter into a pre-nuptial several months before the wedding so that neither party can be accused of forcing the other party to sign since the wedding date was rapidly approaching. This also can help avoid one party taking advantage of the other simply because the other party is emotional and does not want to rock the boat days before the wedding.

Pre-nuptial agreements usually contain provisions relating to separate property, marital property, equitable distribution, maintenance (alimony) and a host of other issues. It is imperative that each party understands how this agreement will effect them in the event of a divorce or separation.

A pre-nuptial agreement may be set aside by a Court, however, only in limited circumstances. One should not rely on getting it set aside later when signing such an agreement.

A post nuptial agreement is one that is negotiated, prepared and executed after the parties have married. These agreements are more rare than pre-nuptials but sometimes are entered into for the same reason as one would enter a pre-nuptial. Again, you should be very wary about signing such an agreement without first obtaining the advice of an attorney of your own choosing. As in the case of a pre-nup, these agreements may contain provisions regarding a range of very important issues. A post-nuptial agreement should not be entered into lightly.

3) Separation Agreement

A Separation Agreement is one that is negotiated, prepared and executed to effectuate a separation from your spouse. If the agreement or a summary of it is filed with the County Clerk’s office it may be used as the basis for a divorce one year from the date it was signed.

This agreement will resolve all issues including equitable distribution, child custody, visitation, child support, maintenance, marital debt, etc. It cannot be emphasized enough that a person considering entering into a separation agreement should be represented by an attorney of their own choosing and only do so after being fully informed of all their rights and obligations. Full financial disclosure of both parties is a must.

There are many reasons why a couple may choose to enter into a Separation Agreement instead of filing for divorce, however, the Separation Agreement addresses all the issues that a divorce settlement would address and so must not be taken lightly.

4) Stipulation of Settlement

A Stipulation of Settlement is an agreement entered into to settle all issues in a divorce. The divorce itself could be very amicable, i.e. the parties agree to all terms and just need their agreement reduced to writing, or it could be highly contested and settle just before trial. Either way, this agreement will resolve all issues of the divorce including but not limited to custody, visitation, child support, maintenance, equitable distribution, marital debt, etc. Once again, each party should be represented by an attorney of their own choosing and must be fully familiar with all provisions contained in the agreement.