Author: S. Thomas Lee, Esq.   Last Updated: 3/1/2019

Sometimes, divorce clients tell me that they have signed an agreement with their spouses some years ago on issues regarding properties, and other marital issues. In such cases, the agreement must be read thoroughly when settling a divorce. Sometimes, however, the agreements cannot be enforced because they fail to meet certain legal requirements.

What are the requirements of a marital agreement?

The definition of a martial agreement is in DRL §236(B)(3). For such an agreement to be valid and enforceable, the agreement

(1) shall be made before or during the marriage,

(2) shall be in writing,

(3) shall be subscribed by the parties, and

(4) shall be acknowledged or proven in the manner required to entitle a deed to be recorded.

What may the parties agree to in a marital agreement?

A marital agreement may contain provisions regarding these matters:

(1) a contract to make a testamentary provision of any kind;

(2) waiver of any right to elect against the provisions of a will;

(3) the ownership, division or distribution of separate and marital property;

(4) the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and

(5) custody, care, education and maintenance of any child of the parties, subject to the provisions of Domestic Relations Law § 240.

It is interesting to note that New York courts generally favors the making of private and legally binding agreements between married or soon-to-be married couples. New York courts generally consider it a public benefit if couples are free to arrange their marital affairs as long as the agreement is not unreasonable.

Some other states, however, impose a lot of additional stringent requirements on the making of such agreements. California is one of such states. For example, for a pre-nuptial agreement to be enforceable in California, it must meet a number of requirements that are not found in New York. One of these requirements is that if one party to the agreement is not represented by counsel, then the agreement must be fully explained to that party in writing.

Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.

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