Brian D. Perskin & Associates

Prenuptial Agreements during Divorce Actions

Prenuptial and postnuptial agreements are receiving praise from matrimonial attorneys throughout New York because of the security they provide married couples in the event of divorce. Safe and practical, these agreements provide protection for premarital assets, while also outlining potential custody and visitation agreements. But exactly how do pre-and postnupts come into play in divorce court?

Invalid Prenuptial Agreements

An invalid pre- or postnupt will often significantly favor one spouse over the other, which can promote divorce because of the unfair and ridiculous stipulations listed in the agreement. In situations such as these, one party may have been forced or coerced into signing the agreement.

If a judge finds a prenuptial or postnuptial agreement to be invalid or unethical, then he or she reserves the right to void the agreement. This means that stipulations listed therein would not be used to facilitate a divorce or child custody settlement.

Valid Prenuptial Agreements

In order for a prenuptial or postnuptial agreement to be used in a divorce action, it must be valid. An agreement can be valid if it is executed correctly no less than 30 days before the wedding, and it also needs to be reasonable and fair to both parties. A complete list of prenupt criteria can be found here. If each party utilized the services of a matrimonial lawyer to draft a case specific agreement, then it will be valid and its stipulations should hold up in a court of law.

Prenuptial Agreements and Child Custody

Potential child custody arrangements made in prenuptial agreements are not typically upheld during divorce. If children are born after a prenupt is signed, couples may elect to draft a postnuptial agreement that provides a template for how custody will be determined during a divorce. Such agreements can discuss how the child will be raised, such as which school or church they will attend. A judge is not bound by the custody agreement in a postnupt, but they are likely to take the couple’s previous wishes into consideration before issuing a custody order.

Child custody is always determined in the best interest of the child, regardless of what is outlined in a postnupt. To ensure that your parental rights are protected, it is critical that you hire an experienced family law attorney to represent you throughout the duration of your case.

Asset Division in NYC Divorce

One aspect of divorce that is greatly affected by prenuptial and postnuptial agreements is the division of assets. These agreements outline which property is considered to be premarital or marital, and how such assets will be divided in the event of divorce. All assets, whether tangible or intangible, are subject to equitable distribution during a New York divorce action.

Tangible/Intangible Assets

Stipulations surrounding the distribution of assets vary on a case by basis, and can be as broad or specific as the couple chooses. Most agreements will dictate that each party retain sole ownership and interest in their premarital property. Marital property, on the other hand, can be a little trickier to divide during divorce.

Common pre- and postnuptial agreements will address the issue of marital property in a few different ways:

  1. Parties will sell all tangible assets and split the proceeds;
  2. One party will purchase their spouse’s interest in a piece of property, and regain full use, occupancy, or ownership of a piece of real estate or money account;
  3. Parties will divide joint financial accounts, either evenly, or by a predetermined percentage.

Small business owners need to take special care to protect their company during divorce. A party’s business interests may be subject to equitable distribution, even if there is a pre- or postnuptial agreement.

Trust the Best Attorneys in NYC

Having a pre- or postnuptial agreement isn’t always a full-proof way to protect yourself during divorce. Hiring a reputable law firm to handle your delicate case is imperative to its success. The attorneys at the family law firm of Brian D. Perskin & Associates, P.C. are dedicated to achieving a fair and lucrative outcome for their client’s cases. To find out more, call (718) 875-7584 to schedule your free consultation today.