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What Are The Benefits Of A Prenuptial Or Postnuptial Agreement?


The first advantage to a prenuptial or postnuptial agreement is that it provides to the spouses some level of control. If keeping your children nearby is the most important consideration for you, and if you are willing to give to your spouse something of great importance to him or her, both spouses may be able to achieve their number one goal. Alternatively, a judge will decide all issues; and the judge may decide the number one goals of both spouses against each of them.

The second advantage is a level of certainty. By reaching an agreement, you are relatively safe that you will get what you agreed upon. The alternative is to leave important decisions to a judge over whom you and your spouse have little control. Further, since either side can appeal, your final outcome may be in doubt for many years.

Third, the cost of an agreement usually is lower than the cost of a trial and possible appeal. This is hardly ironclad, since some agreements take months to negotiate, while a trial could be – – depending upon the complexity of the issues – – just a day or two. But generally speaking, a trial will be more costly.

Before I leave this topic, one should keep in mind a hybrid option. If you and your spouse agree on some issues (say custody and child support) but cannot agree on others (say what should happen with certain property), you can make a deal on the settled issues and try the disputed issues.

What Can And Cannot Be In A Prenuptial Or Postnuptial Agreement?

You cannot agree to prohibit a divorce. A no divorce clause is void against public policy. (Filstein v. Bromberg, 36 Misc.3d 404 [Sup. Ct. NY Co. 2012]).

Often times one spouse wishes to remain married – – say to retain health insurance – – and is willing to give up something of value prohibit the other spouse from filing for divorce.

Prenuptial or postnup agreements also cannot be unconscionable. (Christian v. Christian, 42 N.Y.2d 63 [1977]; Carter v. Fairchild-Carter, 159 A.D.3d 1315 [3rd Dept. 2018]). What is unconscionable is fact sensitive, and it is a heavy burden on the spouse trying to assert unconscionability, but the more one-sided and unfair the agreement, the more likely the moving party will meet his or her burden.

Both child support and maintenance require an acknowledgment of the formulas and a calculation of the presumptively correct awards. But one can deviate from the presumptively correct amount for several statutory reasons.

Can These Agreements Be Changed At Any Point In The Marriage?

Provided the formalities of an agreement are met and both spouses agree, the answer is yes, one can modify these agreements.

What Should Be Kept In Mind when Filing A Divorce If There Is A Pre Or Postnuptial Agreement In Place?

Certainly, one should review the terms of the agreement to confirm compliance by both spouses and that the agreement is conscionable. If the agreement requires a refinance of the mortgage or the sale of the home, one needs to take steps to perform one’s obligations. The agreement may require actions with respect to the children, such as preparing an order for support collection assistance of child support.

Assuming reasonable cooperation between the spouses, a heads up that one is about to file may save aggravation into the future. For example, if the other spouse is on your health insurance and has elective surgery scheduled in a month, holding off a few days may save thousands of dollars. One can hardly expect future cooperation from a spouse who lost health insurance with inadequate notice that unnecessarily cost the other spouse large sums of money.

If either side will challenge the agreement – -say alleging that there was incomplete disclosure, unconscionability, things will become far more complicated. We will need to review the disclosure provided and the circumstances under which the parties negotiated the agreement (did both parties have counsel? Did each side gain something of value, etc.).

For more information on Benefits Of Pre & Postnuptial Agreements, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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