Marriage Agreements

Pre - Nuptial Agreements

Paul McCartney, Alec Baldwin and Roseanne Barr did not have Pre-Nuptial Agreements. They probably thought it was not romantic to have one. But we all know that there was nothing romantic about the acrimonious and public divorce struggles that followed. Pre-Nuptial Agreements (commonly known as "pre-nups") would have protected their millions when their marriages fell apart.

In New York State marriage is considered an economic partnership. Once you are married all property acquired by either or both parties is considered "marital property" and, upon the dissolution of this marriage, all marital property is "equitably" divided, regardless of whose name the property is in or who earned the money. There is a class of property called "separate property' which is exempt from distribution at divorce. Separate property is generally inheritances, gifts from third parties and compensation for personal injuries. Often, during a divorce, there are disputes as to which assets are marital and which are separate. Since a Pre-Nup identifies all separate property and defines what property will be marital, there is less chance for dispute. A Pre-Nuptial Agreement is the only way to protect your interests in the event of a divorce.

A Pre-Nuptial Agreement is a contract between two people who intend to get married and want to determine in advance what will happen in the event of a divorce. It should be considered by anyone who has a business, is in a family business, has property, investments, children from a former relationship, elderly parents or anyone planning to start a business or professional practice. If during a marriage one spouse obtains a educational degree or a professional license, and the acquisition of such is not contemplated in a Pre Nup, that asset will be valued by a forensic accountant and even though that degree or license may have no liquid value, it can be valued at tens or hundreds of thousands of dollars, all subject to equitable distribution at the time of divorce.

Pre-Nups should be specific for each couple and each party should have their own lawyer review, if not participate in drafting it. Since they are private, fully negotiated contracts, they can be as tailored to the couple as they wish. Couples can arrange in advance all of their financial matters in the event of death or divorce. They can protect themselves from their future partner's pre-marital debts, they can protect their interest in a closely held family business, they can protect gifts and inheritances, they can determine what will happen to jewelry, antiques, real property, businesses, degrees, professional licenses, patents, etc.

But besides just being a vehicle to pre-determine what happens to assets in case of death or divorce, Pre-Nups can also be a structure for a couple's financial plan. After full disclosure of all assets and liabilities, the couple might address: Who will be responsible for the monthly expenses? How will pre and post marital debts be paid? What insurance coverage (health, life, disability and long-term care) should the couple carry and how are the premiums to be paid? If either or both parties have parents - what will be the couple's responsibility for their care, when these aging or ill parents are unable to care for themselves? What if one party loses Social Security benefits or maintenance (alimony) from a former spouse? Who be responsible for the support/college costs of children from a prior relationship? What about money for the benefit of grandchildren?

We strongly advise couples to discuss the issues of money and a Pre-Nup as soon as their relationship becomes serious. It is to no ones's advantage to wait until the last minute. A Pre-Nup is a legal contract that takes time to be completely and fairly negotiated and then prepared and executed.

Pre-Nups are no longer just for the rich and famous. All couples contemplating marriage should consider one. Harriet Causin has the experience and knowledge to draft a Pre-Nup that is fair and reasonable and, when reviewing a Pre-Nup, to identify one that is full of "red flags".

Cohabitation Agreements

The increasing popularity of cohabitation, living together without the legal sanction of marriage, has dramatically changed the way the law looks at unmarried couples. In New York State, unless you have a Cohabitation Agreement, in the event of death or break-up, you and your former partner are treated as "legal strangers". A Cohabitation Agreement is a properly executed legal contract between two people living together. The Courts in New York State have long recognized the validity of properly executed "living together" or Cohabitation Agreements and enforce them as they would any other legal contract.

When an unmarried couple live together, they may be committed emotionally but legally they basically have separate financial lives. If one dies, unless financial accounts and real estate are titled in a specific way, the law will not provide for your partner the way you had intended. You must take affirmative steps to provide for your partner.

An express Cohabitation Agreement clarifies the rights, obligations and understandings between you and your partner. It is a private contract which can guarantee a specific settlement at break-up or death. You can agree to keep all property separate, share all property or share ownership of only certain property. A Cohabitation Agreement, like a Pre Nuptial Agreement can discuss how monthly expenses will be shared, how children will be raised, how elderly parents will be cared for or even who will do the household chores.

In conjunction with a Cohabitation Agreement, the parties should make sure that real property is titled the way you want it (i.e., joint tenants with rights of survivorship, if you want to insure that the other party receives full title to the property upon your death) and that each party names the other as beneficiary on all financial accounts.

Do not confuse a Cohabitation Agreement with a Pre Nup. A Pre Nup goes into effect only when the parties marry. A Cohabitation Agreement usually is not valid once the parties marry.

Separation Agreements & Settlement Agreements

A Separation Agreement is a properly executed written agreement between a Husband and a Wife in which they settle their financial and property rights, provide for the support, custody and visitation of the children, provide for spousal support, if necessary, and resolve all other incidents of the marriage. This Agreement may also form the basis for a divorce if the parties live pursuant to its terms for at least one year after it's execution. The Agreement must expressly state that it is the intention of the parties to live separate and apart. It is wise to file a Memorandum of Separation Agreement in the County Clerk's office as soon as possible after the execution of the Agreement. While the Separation Agreement may refer to the dissolution of the marriage, the parties are not divorced until an Action for Divorce has been commenced and a Judgment of Divorce is signed by a Judge (or authorized official of the Court) and entered in the County Clerk's office.

A Settlement Agreement is a properly executed written agreement between a Husband and a Wife in which they settle their financial and property rights, provide for the support, custody and visitation of the children, provide for spousal support, if necessary, and resolve all other incidents of the marriage, during the pendency of ab Action for Divorce. In other words, a Settlement Agreement settles and concludes an already commenced Action for Divorce.

Both Separation Agreements and Settlement Agreements are generally multi-page written documents signed by each party before a Notary Public. There are certain issues that are essential to any Separation or Settlement Agreement and the provisions of the Agreement which relate to these issues must be drafted with the utmost care. These issues may include:

  1. The right of each party to exclude the spouse from his/her will and a waiver of any right he or she might have to receive a portion of the other's estate by virtue of the marriage.
  2. Provisions defining how all property, both separate and marital, real and personal,will be divided and distributed.
  3. Provisions for the care, custody and support of any children the parties may have.
  4. Provisions for maintenance, if applicable, including the amount and duration.

It is sometimes necessary for the attorneys to enlist the services of a tax expert to help assess the tax impact of different proposals.

New York State's Equitable Distribution Law gives parties an opportunity to determine their property and maintenance issues privately and structure a plan for property distribution according to their wishes. These Agreements are binding and generally upheld by the Courts if, at a future time, one of the parties decide that they are not happy with it. Voluntarily entering into one of these agreements permit the parties to determine their own future rather than give the responsibility of making these major decisions that will affect you and your family for years to a busy judge.

These Agreements may be challenged upon a claim of fraud, duress or unconscionability. Even the failure of the monied spouse to disclose his or her financial circumstances may not be sufficient to set aside a properly executed Separation Agreement or Settlement Agreement if the agreement was otherwise fair on its face.

When the parties enter into one of these Agreements, it remains a legally binding document (provided that the Judgment of Divorce states that the Agreement survives) and it can be enforced and modified just as any other contract. Regardless of the Agreement, child support, custody and visitation may be modified by the Court under certain circumstances.

Harriet Causin has successfully drafted marital agreements for over 25 years.

Bound Agreement

Till death do us part - but just in case …

In the marital arena there are many different kinds of Agreements, among the most common are:

  • Pre Nuptial Agreements
  • Cohabitation Agreement
  • Separation Agreements
  • Settlement Agreements
All of these must be in writing and properly executed pursuant to a specific statutory form.

Harriet Causin has successfully negotiated, drafted and enforced all types of marital agreements for over twenty years.

Harriet Causin, Esq. 104 South Central Avenue, Suite 14 Valley Stream, New York 11580
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