In general, spouses are encouraged to reach an agreement and to settle between themselves without the intervention of the court. Matrimonial agreements in New York State can be negotiated and signed both before and after the marriage ceremony. In NY, marriage is considered a fiduciary relationship and agreements between spouses are subject to strict standards. These agreements must be fair and reasonable at the time when individuals entered into the agreement.
Pre-Nuptial Agreements are negotiated and signed by the couple before the marriage ceremony. The negotiations can become intense and adversarial leading to significant reason not to get married.
Post-nuptial agreements are negotiated and signed between spouses while married, where:
- they did not have a pre-nuptial agreement;
- the couple do not intend to be divorced, or
- while a reconciliation is taking place after a the spouses separated
New York Separation Agreements and Property Settlement Agreements
Separation and property settlement agreements in New York are also called "Stipulations of Settlement". Each of these agreements addresses the respective rights and obligations of spouses in the event of a divorce. This type of agreement usually refers to agreements which are made prior to or during the separation of spouses, or while the spouses who are married and intending to separate or divorce are litigating.
Valid Marital Agreements
An agreement made prior to or during the marriage is legitimate and enforceable in the matrimonial action and if the agreement satisfies the following criteria: the agreement must be in writing, it must be signed by the spouses voluntarily, and the spouses’ signatures must be acknowledged by a notary.
Marital agreements must address issues such as: a testamentary provision or waiver of a spouse’s right to elect against the other spouse’s Will; the ownership, distribution or division of separate, or marital property including the spouses’ debts; requirements for the sum and time period of maintenance and/or child support, and the custody, maintenance, care and education of the parties’ children.
Essential clauses which should be included in NY marital agreements
The consideration for Pre-nuptial agreements is the future spouses’ mutual promise to marry.
For Separation agreements, the consideration is the joint promises which the agreements contain.
The New York Domestic Relations Law authorizes these marital agreements as long as they are in compliance with the requirements in the statutes.
The Pre-nuptial agreement which becomes effective when the spouses are married should provide specifically that it is effective when the spouses are married.
A separation agreement must contain a provision for the spouses’ separation.
This clause states that during the time of the spouses' separation each spouse must not interfere with the other spouse or seek to compel the other spouse to resume cohabitation.
This clause designates the party responsible for past, present and future debts, or sets forth the details of each spouse’s responsibility to pay a portion of the marital debts.
Mutual Releases/General Release:
This clause states that each spouse discharges the other, his and her heirs, executors, representatives, etc., from all past claims under law (except causes of action for divorce, separation or breach of the agreement).
Mutual Waiver of Rights in the Spouses’ Estates:
This clause states that each spouse must waive the right to take a non-compulsory share of the estate of the other, to act as executor or administrator of the other’s estate, including the right of inheritance from the other’s estate pursuant under a will which was previously executed. However, this clause does not reduce or eliminate the rights of spouses’ children.
If you have questions about marital agreements or if you are contemplating a separation agreement, property settlement agreement, prenuptial or postnuptial agreement, contact NY divorce lawyer Ingrid Gherman for a consultation (212) 941-0767 or send the on-line form.