Using Premarital or Post-Marital Agreements to Avoid Uncertainty in Divorce
The matrimonial law attorneys of Arroyo Copland & Associates, PLLC advise people about prenuptial and postnuptial agreements — drafting them, negotiating them, reviewing them, challenging them and enforcing them. Contact our office in Albany to learn about the ways you can benefit from an agreement before or after marriage, or if you need advice about the effect of an agreement in a current or contemplated divorce.
The most common function of a prenuptial agreement is to take the uncertainty out of the property division and spousal maintenance issues that will need to be resolved in the event of a divorce. The agreement can specify the marital or separate character of certain property, clarify each person's contributions toward assets like a house acquired during a period of cohabitation, or document payments by one person toward that person's indebtedness. A prenuptial agreement can also provide that business assets, a professional practice or an academic degree will not be considered part of the property to be valued and divided in divorce, or it might provide that the moneyed spouse will pay a specified amount to buy out the marital interest.
Older couples with adult children might specify certain assets or income streams as reserved for children from a prior marriage to avoid confusion upon divorce or death. They could also identify certain pension or retirement accounts as separate property. In some situations, it makes sense to develop the terms of a prenuptial agreement in conjunction with a revised estate plan in order to avoid unintentional disinheritance of adult children.
When one spouse will have a much higher income than the other during a contemplated marriage, it makes sense to address spousal maintenance in a prenuptial agreement. Terms calling for payment of a lump sum in lieu of alimony at an increasing scale according to the length of the marriage are common. Sometimes premarital agreements that call for the waiver of maintenance payments are revised later to grant alimony in a post-marital agreement.
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Our lawyers can guide you through the considerations and options you'll have before you if you're considering a prenuptial agreement or revision of an existing agreement after marriage. To be enforceable, an agreement must be based on full and fair disclosure of each party's income and assets, free from circumstances indicating duress or coercion, and signed with at least a reasonable opportunity for independent legal review.
Courts will evaluate the enforceability of a premarital or post-marital agreement on the basis of substantial fairness at the time of execution and at the time of divorce. Substantial changes in assumptions and circumstances years after execution can raise difficulties for enforcing an agreement as drawn.
At the time of divorce, our Albany prenuptial agreement attorneys can advise you about the enforceability of a document that you have prepared or signed at your spouse's request. Because of the impact that a prenuptial agreement will later have on your property and maintenance rights and obligations, sound legal guidance as to the likely effect of the agreement in court will be indispensable.
For more information about premarital and post-marital agreements as an asset protection measure during marriage and as a streamlined approach to key issues in a New York divorce, contact a knowledgeable matrimonial lawyer at Arroyo Copland & Associates, PLLC in Albany.