Marital Agreements

Under New York’s Domestic Relations Law, two adults who marry are entering into a civil contract. There are many additional contracts spouses may enter, before, during, or in anticipation of dissolving, a marriage. Domestic partnerships and same sex marriages have unique legal issues and parties entering these contracts should consult with attorneys experienced in this specific area.

The primary marital agreements are:

Pre-Nuptial Agreement: Also called a “pre-nup,” this is a legally enforceable contract entered into prior to a marriage in which the parties disclose their pre-existing financial assets and can pre-determine many financial issues, including how they will divide assets in the event of divorce or death, or other change of circumstances.

Post-Nuptial Agreement: Also called a “post-nup,” this is a legally enforceable contract entered into after a marriage in which the parties determine many lifestyle and financial issues, including how they will divide assets in the event of divorce or death of one spouse.

Separation Agreement: Agreement entered into without court intervention and voluntarily by two spouses who have decided to live separately and apart. As part of the agreement, the spouses may address and determine, without divorcing, issues including child support, child custody and visitation, spousal maintenance, division of property and assets, including the family house, if there is one.

Marital Settlement Agreement: Also called a “stipulation of settlement,” spouses who have decided to end their marriage can enter a marital settlement agreement in which they settle all the issues that might be raised in a divorce proceeding, including property rights, spousal and child support obligations, custody arrangements and all other rights and duties that might be decided in divorce court. A marital settlement agreement can facilitate an uncontested decree of divorce issued by a New York court.

My spouse and I have questions about entering into a marital agreement. How should I prepare?

  • Determine what type of agreement you are interested in;
  • Each spouse should document assets they bring/brought to the marriage and property they acquired during the marriage and assemble copies of financial statements and title documents;
  • Consider the changes that are prompting the decision to enter into the agreement, and how those reasons will affect the living arrangements and children;
  • Each spouse should retain separate counsel before signing an agreement;
  • Consult with an experienced matrimonial and family lawyer.

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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