If a person relies on the statistics of successful marriages and marriages ending in divorce, the odds are greatly against the notion of getting married and living happily ever after. When a marriage breaks down, the state relies on statutory guidelines and several factors that are balanced in determining the fairness of many issues associated with divorce ranging from: Alimony, distribution of property, custody of the children, child support, and many other important matters.
We can all agree it would be best to conduct diligence and prepare before we enter into a contract, or business relationship, and define the rights and liabilities of the parties involved. Otherwise, in the event the contractual relationship breaks down, legal disputes may arise and the battle begins to determine what the parties are entitled to, which ultimately cost the clients more money.
Similarly, when a person decides to get married, they should have a strategy in place that protects both spouses, and is geared toward the best interests of the children if the marriage ultimately fails.
NY recognizes three types of matrimonial agreements; Pre-nuptial, nuptial, and separation agreements. This article will discuss them in the relative order of pre-marriage to post marriage. I will discuss pre-nuptial and nuptial agreements first, followed by separation agreements.
A prenuptial agreement is entered into prior to the marriage. Pre-nuptial agreements are separate agreements where the two parties contract on certain issues in the event that the marriage were to break down. Obviously the goal is to have a happy and lifelong marriage, but it is prudent to plan for the unexpected.
A nuptial agreement is formed during the marriage. They usually occur when the spouses have a desire to agree to certain things after the marriage was formed. For example, if the husband obtained a law degree when married and the wife simultaneously acquired a nursing or medical degree. The spouses could agree in a nuptial agreement that each solely obtain the rights to their degree as separate property not marital property, which would avoid being subjected to equitable distribution by the courts. Other instances may include a change in net- worth.
A court can rescind a pre-nuptial or nuptial agreement if the agreement was unconscionable or a product of fraud. It can be rescinded within three years from when a spouse dies, or is served with papers seeking a dissolution of marriage, divorce, or an annulment.
A separation agreement which is conditional on the spouses living apart. A separation agreement remains enforceable until: (1) it merges into a divorce decree, or (2) the supposes re-unite with the intent to fully resume the marital relationship. If the spouses attempt to reconcile, and co-habitate, the separation agreement may be deemed waived and/or unenforceable.
All three types of marital agreements can address issues involving children and economics. The agreements can divide marital property, provide for custody, visitation, child support, and they can provide for maintenance and alimony.
In order for these agreements to be enforceable, they must be in writing, signed by both spouses. The signatures need to be acknowledged in the same manner as a deed (notarized), or it will not be recognized.
Even if one of the spouses waives financial support in the agreement, the court may order support (maintenance/alimony) if the spouse is unable to support themselves, and risks becoming a “public charge.”
Therefore, it is very important to plan for the future before entering the marriage, during the marriage, and in event that the marriage fails and separation is inevitable.
Call today for a consultation regarding Marital Agreements.
Joe Cammarata Esq.