Most prenuptial or postnuptial agreements have a similar structure and general terms. They contain provisions that address marital and separate property, spousal support, asset distribution in the event of divorce and inheritance rights. However, there isn’t a prenuptial agreement form in the sense of standard terms for how parties will split property or handle support or other matters. Instead, every situation is different and the agreement must be customized to account for those variables.
Separate vs. Marital Property
In New York, separate property is property that was acquired by a party before marriage, through inheritance during the marriage, or was a gift made directly to a party during the marriage, provided it remains titled solely in that party’s name. As separate property, it is not divisible in divorce. Only marital property is divided.
There is a risk during marriage that a party will inadvertently convert separate property into marital property. A prenuptial or postnuptial agreement can help avoid that problem. An agreement can also allow a party to use separate property as a bargaining chip to expedite divorce.
Equitable Distribution
In New York, there are 14 factors used to determine the equitable distribution of marital assets in divorce. However, the parties can supersede these in a prenup or postnup that states how they want their assets to be split. There is no standard language that can be used in the prenup or postnup because every marriage has different types of property and each spouse has his or her specific needs and wishes regarding what constitutes a fair division of their property.
Spousal Support
The parties can alter the default rules that apply to spousal support in New York in a prenup or postnup. For example, the agreement can provide for higher or lower payments, or a longer or shorter duration for payments.
A spouse can even waive all spousal support except in certain circumstances, such as if the spouse had a child during the marriage, the spouse becomes involuntarily disabled or involuntarily unemployed.
Inheritance Rights
A prenup or postnup can contractually address the parties’ wishes regarding what assets a spouse will inherit when the other one dies. However, a prenup or postnup cannot dispose of the property after death and it does not supersede a valid will. As a result, if the deceased spouse did not leave promised property to the other spouse in the will, the living spouse must sue the estate for breach of the prenup or postnup. Alternatively, in New York, the surviving spouse has a legal right to one-third of the value of the decedent spouse’s estate, including separate property, unless he or she waives that right in a prenuptial agreement.
There is no standard prenuptial form that can be downloaded from the internet that will appropriately address the issues discussed above and the unique needs of the parties. There are also individual state law requirements that internet-based agreements do not contain. An agreement must be tailored to the specific circumstances of the couple and legal requirements of the state the document is being entered into to help ensure that it is enforceable, fair and protects the rights of both spouses.
If you are considering a prenup or postnup, contact us to discuss how we can help you achieve a positive outcome
