Understanding Different Types of Divorce

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How Prenuptial Agreements Work in a Divorce

Prenuptial agreements are binding contracts that change the rights and obligations that future spouses will have once they are married.  The two primary areas affected are rights of inheritance and rights in the dissolution of marriage.  Prenuptial agreements (also called antenuptial agreements) generally only take effect should the parties get married, and can be simple one-issue agreements, or can be comprehensive agreements that cover a myriad of potential issues.

Read below to learn more about how prenuptial agreements work in a divorce or call to speak to one of our experienced divorce attorneys for a free and confidential consultation. Our firm serves Nassau and Suffolk counties on Long Island with the knowledge, experience and trust to give you the best advice.

Although they are similar to marital settlement agreements that resolve the issues of a divorce action, they are different in some key respects.  While both types of agreements are “opting-out” agreements by which the parties determine the outcome of important issues without the need for a trial or the assistance of a judge, a prenuptial agreement often will not determine all of the issues of a case. This is always the case where there are children.  By law, child support cannot be resolved in advance and though custody can be, the chance that parenting provisions will be inconsistent with the best interests of the children is so great that custody provisions are rarely used and often overturned by courts.

Another critical difference between prenuptial and marital settlement agreements is that the division of assets in a prenuptial agreement is often very one-sided, far more so than in a marital settlement agreement.  This is because the prenuptial agreement is usually used to preserve the assets of the more monied future spouse by expanding the definition of separate property beyond the definition found in the Domestic Relations Law. So, not only are the separate assets identified and admitted to be separate without the need for cumbersome and often unavailable proof as is the case when a marital settlement agreement is negotiated, but the prenuptial agreement will protect the assets of the monied future spouse from any loss arising from appreciation, and will sometimes even allow separate assets to grow from contributions made during the marriage by defining the income earned during the marriage as separate property as well.

Maintenance (spousal support) is often the subject of a prenuptial agreement, and here too the agreements tend to favor the monied spouse.  It has long been common practice for a prenuptial agreement to define tiers of maintenance entitlement based on the length of time the parties are married, without reference to the standard of living of the parties, nor their incomes.

Should the marriage end in divorce or separation, the provisions of a pre-nuptial agreement must be pled as the relief to be requested in the divorce action.  Usually they are great time savers, because there is less to resolve in the divorce action.  This is true regardless of whether the case is uncontested and stays out of court, or is contested and goes to court.  Fewer issues to resolve can mean less time and money spent on a divorce.

However, there are occasionally cases where a prenuptial agreement causes a case to be more prolonged.  This happens when the prenuptial agreement is poorly drafted, is too one-sided, or is otherwise unfair.  When the disadvantaged spouse has a reasonable chance, based on case law precedent, of getting a judge to agree that the prenuptial agreement should be set aside, this can spark a litigation inside of a litigation.  Not only will the divorce be contested, but the validity and enforceability of the prenuptial agreement will also be contested.

As terrible as this may sound, in the hands of an experienced matrimonial attorney the cost and duration of litigation often can be curtailed.  As with any other issue, the validity of an agreement can be the subject of negotiation.  Handled properly, the terms of the prenuptial agreement can be effectively modified in a final settlement that covers all issues, including the issues covered by the prenuptial agreement.