Marital Agreements

Matrimonial agreements can be in the form of a Pre-Nuptial Agreement, Post-Nuptial Agreement, Separation Agreements (made during the marriage) and Settlement Agreements. These agreements between the husband and wife can always be made with court intervention.

The old adage "better safe than sorry" certainly applies here based on the statistics of divorce in New York. Couples fear Pre-Nuptial Agreements, which are created before the marriage as most often it interferes with their pre-conceived notions of romanticism. However, a well drafted Marital Agreement prepared by an attorney can preclude years of litigation by an embattled couple who suddenly find the courtroom to be their new battleground.

A Post-Nuptial Agreement can always be made during the marriage. Standard clauses include ownership of businesses or property, division of separate property; division of marital property; clauses for custody and support of any children created during the marriage. The clauses in these Matrimonial Agreements must be under New York case law, fair and reasonable at the time they were signed by the parties and certainly cannot be unconscionable against one party.

Separation agreements, on the other hand, are in a sense easier to draft for the matrimonial lawyer, because they deal with a specific defined income, and a defined number of children. Pre-nup agreements are different in that the matrimonial attorney must take into account the anticipated possibilities such as, how many children will come of the marriage, how much will each party earn, what is separate property, what is marital property, is child support to be paid, who shall be the parent who has child custody, and so on. Although a court is not bound by a pre-nup clause that talks about child custody, reasoning that the court retains jurisdiction in loco parentis, nonetheless there is no harm in agreeing to child custody before the marriage. And of course, the most uncertain element is time: the fundamental premise to this contract is that it must not be unconscionable, for if it is found to be so down the line, then the contract is nullified by a court of proper jurisdiction upon a motion before the Judge assigned. But the question arises: how can a family lawyer know now that what appears to be fair and reasonable and not unconscionable now may be open to attack in a divorce 20 years from now? The answer is: you don't. The best you can do is obtain the advice of attorneys who have many years of experience and high educational credentials.