A marriage is in many ways an economic partnership. Many couples in the United States have come to acknowledge this important aspect of a marriage. For that reason, it is more common now for them to enter into written marital agreements, which can help them avoid expensive litigation if there is a divorce in the future.
What is a marital agreement (prenuptial agreement & postnuptial agreement)?
In New York, a married couple can enter into a written agreement regarding financial and other issues of their marriage even if they are not thinking about a divorce. The couple can, for example, designate certain property as being separate property belonging to only one of them and not subject to division in case of a divorce in the future.
Un-married couples can also enter into similar marital agreements before they get married. Such agreements are commonly known as “Prenuptial Agreement.”
For a marital agreement to be valid and enforceable, it must be in writing, subscribed by the parties and properly notarized.
People most commonly enter into marital agreements because they want their financial affairs to be separate. For example, a young woman was given an apartment unit by her parents as a gift, and now she wants to get married to her boyfriend. Her parents want to be sure that the apartment will fully belong to her even if the young couple break up in the future. To achieve this, the couple can sign a pre-nuptial agreement that explicitly states that the apartment shall remain the separate property of the soon-to-be wife regardless of what will happen during the marriage.
In a marital agreement, the couple can also agree, for example,
(1) to give each other the complete freedom to disinherit the other spouse;
(2) to have each spouse be responsible for all debts under his or her own name;
(3) to give custody of the children to one of the parties;
(4) to the amount of child support to be paid; and
(5) to the amount of future alimony if any;
However, in matters regarding children of the marriage, a court has the power to modify any agreed-upon arrangements, including child custody and the amount of child support, in order to protect the children's interests. The court also has the power to change spousal support arrangements if, generally speaking, the agreement is unfair and unreasonable (See NY General Obligations Law § 5-311).
Another important matter to consider is whether to give each party the right to disinherit the other. Under New York Law, in the absence of any agreement to give up the right to inherit from a spouse, upon the death of a spouse, the surviving spouse has the right to inherit at least a portion of the deceased spouse's estate, even if the deceased spouse has a will that leaves all his properties to, for example, his parents or his children.
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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