Marriage itself is a type of legal contract which automatically gives spouses certain rights and responsibilities. These rights and responsibilities affect the couple during marriage and in the event of death, separation or divorce. However, the parties can modify their rights and responsibilities to each other by entering into their own written agreement.
There are 3 types of marital agreements with each kind applicable at a different point in time in the couple’s relationship.
Prenuptial (or ante-nuptial) agreement. A prenuptial agreement is entered into before the vows are exchanged. Although many people think prenups are only necessary when one party has significant wealth to protect or in the case of a second marriage, prenuptial agreements are beneficial in almost any situation. Prenups cause couples to negotiate by requiring them to fully disclose their assets, debts, financial expectations and goals in marriage. These agreements also enable the parties to come to an agreement on asset division and spousal support issues in the event of separation or divorce while they still have a strong, connected relationship.
Post-nuptial agreement. A post-nuptial agreement addresses the same financial issues as a prenup, but is signed after wedding vows are exchanged. Post-nups are particularly useful where there is financial tension within the marriage because, for example, one spouse is a saver while the other is a spender. Postnups enable the couple to formally work out how they will deal with personal and joint expenses, assets and income as well as handle property division and spousal support in the event of separation or divorce. As with prenups, post-nups force couples to have those hard conversations by compelling them to discuss and negotiate their financial expectations openly and honestly.
Separation agreement. Separation is used by people who want to get out of their marriages but not fully abandon all of its legal advantages. New York law recognizes that couples may decide to separate and may enter into an agreement regarding each spouse’s rights and duties, including how the parties will handle custody, support and property division. Unlike a prenup or post-nup, a separation agreement can address child custody and child support issues.
There are 2 types of separation – separation pursuant to a decree or judgment of separation and separation pursuant to a written agreement of separation. In both situations, the couple would live separate and apart, settling financial and custody issues by agreement. We will discuss separation agreements in more detail in future posts.
If you are getting married, already married and fighting about money or considering separation, our experienced matrimonial attorneys can advise you regarding the best solution for your situation. Any agreement should be carefully negotiated and vetted by an attorney for each party to ensure it is fair and addresses the needs of each spouse. Contact Jewell Law to find out how we can help.