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Prenuptial and Postnuptial Agreements FAQ

Are you wondering whether a prenuptial or postnuptial agreement would be right for you? At Berkman Bottger Newman & Rodd, LLC, our attorneys are dedicated to keeping our clients informed. For your benefit, we have assembled the following list of frequently asked questions and answers regarding prenuptial and postnuptial agreements.

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At Berkman Bottger Newman & Rodd, LLP, one of our experienced attorneys can answer any other prenuptial or postnuptial agreement question you have. Please contact us at 212-867-9123 or online.


Can a prenuptial or postnuptial agreement affect child custody or child support?

While a court will not uphold a prenuptial or postnuptial agreement that limits or gives up future child support, child custody and visitation rights, the court may consider the couple’s wishes when making their decision. While a couple can control what happens to their assets and debts in a prenuptial or postnuptial agreement, they cannot contract away a child’s right to be supported or to have a future relationship with a parent.

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Can a prenuptial or postnuptial agreement cover alimony, maintenance, spousal support?

Yes, in New York, a prenuptial or postnuptial agreement can cover alimony. If there is a clause in the agreement stating that neither spouse is entitled to alimony upon divorce, as long as the agreement was properly executed and is not unfair at the time of the signing nor unconscionable at the time of divorce, it will likely be upheld.

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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.

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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.

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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.

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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.

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