Prenuptial and Postnuptial Agreements FAQ

What does a prenuptial or postnuptial agreement need in order to be valid?

Both prenuptial and postnuptial agreements are contracts between two parties. This means that in order to be valid, the agreement must be in writing and signed by both parties before a notary public. If the agreement is a prenuptial one, it must be signed before the wedding with enough time for both parties to consult with attorneys. Both sides must also give truthful disclosures of their assets.

Do we both need lawyers if one of us had a lawyer prepare the prenuptial or postnuptial agreement?

Yes, if one person had a lawyer prepare the prenuptial or postnuptial agreement, it is best for the other person to also have a lawyer. That way, the lawyer can go through the entire agreement with the other person and discuss what effect the agreement would have in the event of divorce. The lawyer can even negotiate changes to the agreement. If each side has independent counsel, the agreement will be fairer and a court will be more likely to enforce it.

What happens to our property if we decide to not have a prenuptial or postnuptial agreement and we get divorced?

Without a prenuptial or postnuptial agreement, upon divorce, your marital property is divided by the court in a way that is fair. In order to determine this, the court looks at a number of different factors, such as each spouse’s age, income, and health. Property that was owned before marriage, or that was received as a gift or inheritance during the marriage, will generally be given to that person.

Will a prenuptial or postnuptial agreement determine how my spouse’s property is distributed after their death?

A prenuptial or postnuptial agreement determines how your spouse’s property is distributed after their death only if there is such a provision in the agreement. If there is no such provision, your spouse’s property will pass according to their will or, if they did not have a will, New York law.