Prenuptial Agreement Lawyers Buffalo NY
Prenuptial & Postnuptial Agreements
If a married couple decides to get an uncontested divorce, it means they probably agree on the ancillary issues, such as spousal support, child custody, equitable distribution and other financial issues. But much of the time, the couple disagrees on some or most of these issues. As a result, a court must decide these decisions for the divorcing couple. When this happens, the divorce becomes more expensive and there is uncertainty as to what the court will do.
Couples can avoid much of this uncertainty by agreeing on what to do before the divorce takes place. These agreements are called prenuptial agreements if they are made before marriage and postnuptial agreements if they’re made during marriage; collectively, they may be referred to as marital agreements. Besides reducing uncertainty, these marital agreements allow couples to divide their property in ways that New York law doesn’t normally allow.
In order to make sure marital agreements are enforceable and likely to survive a court challenge, it’s best to get legal help. At Cole, Sorrentino, Hurley, Hewner, & Gambino, P.C.,, you can get that assistance from one of our experienced prenuptial agreement lawyers in Buffalo NY.
What Is a Prenuptial Agreement?
A prenuptial agreement, also called a prenup, antenuptial agreement or premarital agreement, is a contract entered into by two people before they get married. This contract will lay out the property rights of each spouse during marriage and in cases of divorce or death. Many prenuptial agreements will cover the following topics:
- Distribution of property acquired during marriage.
- The right to spousal support, as well as the terms of any spousal support, such as amount and how long the payments should last. Exception: if the marital agreement’s provisions leave one spouse so poor they are eligible for government assistance, the court may modify the marital agreement’s terms.
- The state law that will control the prenuptial agreement.
- Dictating who will be liable for which premarital debts.
- Spousal rights to specific property, such as a family business.
- Defining what will constitute marital property and separate property.
- Some issues relating to the couple’s children, especially those brought into the marriage.
Even though New York allows prenuptial agreements to cover some topics relating to children, a court will review the agreement and has the right to disregard those portions of the prenuptial agreement. Basically, a prenuptial agreement that has terms as to child support, custody, visitation, etc. will be viewed by a court as only a suggestion; courts do not enforce an agreement against a child (especially one that hasn’t even been born) unless it’s in the child’s best interest.
What Is a Postnuptial Agreement?
Basically, a postnuptial agreement is the same as a prenuptial agreement, except it’s entered into after the couple has been married.
What Are the Requirements of a Valid Marital Agreement?
In order for a marital agreement to be valid, the following requirements must be met:
- The agreement must be in writing.
- The parties must sign the agreement in the presence of a notary public.
- The provisions of the agreement must be reasonable to both parties.
In the case of a prenuptial agreement, it will not go into effect until the couple marries.
Are Marital Agreements Always Enforceable?
Even though marital agreements are presumed by the courts to be valid, they will not always enforce them. Marital agreements can be challenged in several ways, including:
- Fraud: If one of the spouses fails to fully disclosure their assets, income, debts or other material facts, a court may invalidate the marital agreement.
- No legal counsel: If one of the spouses does not have an attorney when signing a marital agreement, it will not automatically invalidate the agreement. However, a court will review the marital agreement more carefully to ensure it really is fair.
- Mental competence: If one of the spouses was not mentally competent or under the age of 18 when they signed the marital agreement, it’s unlikely it’ll be enforceable.
- Unfair: Parties have a lot of leeway as to what they want to agree to in a marital agreement. But if the contact is so lopsided and unfair to one party, the court may refuse to enforce the marital agreement. On the flipside, the more fair and equal a marital agreement, the more likely a court will enforce it.
- Duress: A spouse who is pressured to sign the marital agreement or not given enough time to consider its provisions (such as having enough time to find his or her own attorney) will have grounds to have a court disregard the marital agreement.
Contact Us to Create Your Prenuptial or Postnuptial Agreement
If you’re thinking about entering into a prenuptial or postnuptial agreement and need help with preparing one or reviewing its terms, contact the prenuptial agreement lawyers at Cole, Sorrentino, Hurley, Hewner, & Gambino, P.C., for dedicated representation.