New York Prenuptial Agreements Attorneyprenuptialpostnuptial

Spelling Out Marital Property Rights in Advance with a New York Attorney

The division of marital property can be one the most difficult issues to resolve in a divorce. For this reason, many people who bring significant assets to a marriage seek a lawyer’s help to spell out property rights in advance through a prenuptial agreement.

At the Depalo Law Firm in Dongan Hills, Staten Island, New York, we help clients draft both prenuptial and postnuptial agreements. Prenuptial refers to agreements you enter into before marriage and postnuptial refers to agreements you enter into while you are married. Either type of agreement allows you to determinehow martial property will be divided and whether “alimony”, called maintenance, should be paid in the event of a future divorce.

There are several situations where a prenuptial agreement makes sense:

  • If you have separate property such as an inheritance, a family business or real estate that you wish to preserve as separate property
  • If you are entering a second marriage and want to protect the estate rights of your children from a first marriage
  • If you and your spouse have drastic differences in income and you do not want to share all the assets equally in case of a divorce.

Married couples may draft postnuptial agreements when they are having disputes over property or a business venture and wish to work out an agreement now before those issues lead to a divorce. Since debts are also divided in the event of divorce, a postnuptial agreement can be used to protect one spouse from a debt incurred by the other spouse.

Prenuptial and postnuptial agreements are enforceable in New York as long as there is full disclosure of assets and the spouse signing the agreement was not coerced and was given a right to retain his or her own attorney.

To schedule an attorney consultation to discuss a prenuptial or postnuptial agreement: Call 718-213-4746 or fill out the contact form on this Web site. Our law office is located on 94 Hancock Street in Dongan Hills, Staten Island, New York.

There are rules which apply to claims that may be made with regard to prenuptial and postnuptial agreements. For example, New York Domestic Relations Law § 250 limits the time a prenuptial or
postnuptial agreement may be challenged to be set aside to THREE YEARS from the date of process in a matrimonial action, or the death of a party. The statute which sets said time limit is DRL §250 (McKinney), and it states:

1. The statute of limitations for commencing an action or proceeding or for claiming a defense that arises from an agreement made pursuant to subdivision three of part B of section two hundred thirty­six of this article entered into (a) prior to a marriage or (b) during the marriage, but prior to the service of process in a matrimonial action or proceeding, shall be three years.

2. The statute of limitations shall be tolled until (a) process has been served in such matrimonial action or proceeding, or (b) the death of one of the parties.

3. The provisions of this section shall not apply to a separation agreement or an agreement made during the pendency of a matrimonial action or in settlement thereof. The three year limitation set forth in Section 250 applies both to making a claim in a divorce proceeding or claiming a defense in a divorce proceeding “that arises from” a prenuptial or postnuptial agreement. Stated another way, the three year period applies both where a spouse is seeking to invalidate an agreement and where a spouse is seeking to enforce the agreement. Of course, there has to be a legal reason/basis to set aside the agreement. To make a claim to set aside the agreement, a party would have to allege one or more of the following: fraud, duress, undue influence, unconscionability, or other inequitable conduct. It is the party alleging such inequitable conduct who has the burden to prove same and who must present more than just naked allegations in order to obtain a hearing on the validity of the agreement. Although the spouse seeking to set aside an agreement initially “bears the burden to establish a fact­based, particularized inequality, once that is done, the burden shifts to the proponent of the agreement to disprove fraud or overreaching.” Petracca v. Petracca, 101 A.D.3d 695, 956 N.Y.S.2d 77 (2d Dep’t 2012).

The Second Department in Petracca also noted that although a postnuptial agreement will be recognized and enforced in much the same manner as an ordinary contract: “[a]greements between spouses, unlike ordinary business contracts, involve a fiduciary relationship requiring the utmost of good faith.” Accordingly, “courts have thrown their cloak of protection” over postnuptial agreements, “and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity. As you can see, the negotiation, preparation and execution of marital agreements, along with timely asserting a claim or defense related to said agreements once an action has commenced are critical to the determination of the validity of such contracts. We recommend that you have a qualified matrimonial attorney on your side throughout the process so that the agreement will stand up to the scrutiny of the courts. Call the DePalo Law Firm for more information regarding the law for pre­nuptial and post­nuptial agreements.

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The DePalo Law Firm has been accepted as a Participating Law Firm for Hyatt Legal Services, ARAG, Workplace Benefits, and the Legal Club of America.