Pre-Nups, Post Nups and More
Divorce Settlement Agreements
Settlement Agreements
A Marital Settlement Agreement can take the form of a Separation Agreement or a Stipulation of Settlement.
At the outset, it is important to know that if you and your spouse are merely living apart, you are informally separated but not legally separated, and neither of you has any legally binding obligations to the other.
Separation Agreement
A legal separation usually means the spouses have entered into a Separation Agreement and no divorce case has been filed in the court. With the exception of dissolving the marriage, the Separation Agreement resolves all issues, including child custody and visitation, child support, spousal support, division of assets and debts, medical insurance, life insurance, and all other financial issues.
There are also provisions in the Separation Agreement that state that you and your spouse have the legal right to live separate and apart from each other, and not to be disturbed by the other spouse, as if you were single and unmarried. However, you are not yet divorced, so you cannot marry another person. (If you do so, you are committing bigamy, which is a crime in the State of New York.)
Stipulation of Settlement
A Stipulation of Settlement is similar to a Separation Agreement, but in this situation, you or your spouse have started court divorce proceedings before the agreement/stipulation is signed. In other words, a Summons with Notice in a divorce proceeding has been filed with the Court, and there is a pending divorce action when the agreement/stipulation is signed. The Stipulation of Settlement resolves the same issues that the Separation Agreement resolves: custody/visitation, support, division of assets and debts, etc.
In order to be legally binding, a Separation Agreement or Stipulation of Settlement must be in writing, signed and duly acknowledged before a Notary Public.
Why do a Prenuptial Agreement?
Prenuptial Agreements (Pre-Nups) normally resolve issues that are usually decided by a judge in Divorce Court (in the absence of a Pre-Nup). These issues range from the distribution of assets in event of a divorce or death of a spouse, to spousal maintenance (alimony). The advantages of having a PreNup are several, including protecting assets acquired before marriage that would be divided in accordance with state law if no PreNup exists.
Nevertheless, a PreNup cannot cover some issues, related – for instance – to unconceived future born children. The support and care of such children are determined by a future settlement agreement or a judge who will determine child custody and visitation based on the best interests of the child; the judge will determine child support in accordance with New York law.
In New York, a prenuptial agreement has to be finalized before the marriage, and will take effect on the date of the marriage. PreNups must be in writing, signed by both future spouses, and duly acknowledged before a notary public. (An oral PreNup or an unsigned agreement won’t be upheld in court).
Postnuptial Agreements
A Postnuptial (Post-Nup) Agreement is similar to a Prenuptial Agreement but it is made after the marriage ceremony. A Post-Nup can cover issues such as pre-existing or future assets, and maintenance (alimony). A PostNup, might also address custody, visitation and child support (these issues are rarely addressed in a Prenuptial Agreement when couples do not have children born before marriage).
Sometimes a Post-Nup can help to save a marriage. For a case study of a Post-Nup saving a marriage, click here
I am thankful that Arnold persisted in making the best efforts to get my divorce case settled. I know he saved me at least $100.000 in legal fees that would have cost me if my divorce case went to trial. – Client