Author: S. Thomas Lee, Esq.   Last Updated: 10/25/2019

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?

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 “Pre-nuptial 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 give custody of the children to one of the parties;
(3) to the amount of child support to be paid; and
(4) to the amount of future alimony if any;

However, it should be noted that a court has the power to modify arrangements regarding the children, including the amount of child support, in order to protect their interests. The court also has the power to change alimony arrangements if, generally speaking, the agreement is unfair and unreasonable.

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

<- Previous